Risky, if Mediator never Learn Mediation
Jakarta l Badilag.net
In a session of workshop on mediation held by Badilag in Jakarta (20/3/2012), one of the guest speakers, Prof. Takdir Rahmadi, who is also justice at the Supreme Court, warned the risk of a mediation facilitated by a person who never learns mediation. Prof. Takdir is concern if the mediator never learned, he might secretly perpetuate injustice.
Prof. Takdir gave an example of divorce mediation, where the parties are not equal. For example, the husband is a rich while his wife is just a housewife. If such a case is mediated by a mediator who has no skill or does not adhere to the code of conduct, the injustice could potentially occur. Because mediation is naturally closed, so there is no control from the public.
Quoting Perma 1/2008, Prof. Takdir confirmed that mediator should be certified. This is to prove that the mediator has studied and learned mediation. However, the study of mediation should not be reached in any place as the certificate should not be issued by any institution.
According to Takdir, the Supreme Court already has a list of accredited institutions where the certificates of their mediation training and education are recognized. The current number of certified mediator is nothing compared to the demand of Perma 1/2008 which requires almost all civil cases should be mediated prior to litigation process.
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In addition to the lack of mediator, the number of certified judges is also insufficient. Hence, there should be a compromise allowing judge who has no mediation certificate to take a role as mediator in a case he or she does not examine and decide.
The compromise, according to Prof. Takdir, was rooted from the fact that mediation which was initially regulated by Perma 2/2003 has adopted America and Australia point of view, stating that the judge is not allowed to be mediator for the case he or she handles. It is feared, if the mediation failed, this might to some extent influence the judge in examining the case. However, a different reality happens in Japan, where the judge is allowed to mediate the parties of the case he or she examines. After a debate whether judge can be a mediator or not, the compromise emerges. As a result, the parties are allowed to decide which mediator they want to choose: judge or non-judge mediator.
Should be Careful
In mediation procedure, there is a term known as caucus, which is a kind of method that allows a mediator to meet and talk with the parties separately. Through this method, problem solving can flexibly be done.
"But the caucus should be first explained to the parties in order to avoid such a negative presupposition,” said Takdir.
Furthermore, Takdir explained that mediation must be done carefully so there will not be an injured party. For example, mediation of land disputes in which parties who participate in mediation are only the plaintiff and the defendant, while there is actually another party who also has rights over the land. If the mediator is not really careful, the plaintiff and the defendant might conspire to make a deal by neglecting the right of the third party. This is really dangerous.
In addition, mediation may not be made to seek legitimacy and legality, because legitimacy and legality are parts of court’s product. Hence, the question arises regarding the legality and legitimacy of divorce resulted from an agreement in mediation. Can a divorce be confirmed by the agreement?
"There should be no divorce agreement. It must be a decision, because divorce has kind of a spiritual dimension," said Takdir answering the question. (SQ)