Mediation is a form of alternative dispute resolution in which an impartial third party, the mediator, assists the parties in negotiating a mutually acceptable settlement. Unlike a judge or arbitrator, the mediator has no power to impose a decision.
How It Works
A mediation usually begins with a joint session in which each party explains its position, followed by private meetings (caucuses) in which the mediator explores interests, tests positions and helps generate options. Discussions are confidential and without prejudice, so that offers made cannot later be used in court.
Advantages
Mediation is quicker and cheaper than litigation, preserves business relationships, allows creative solutions that a court could not order, and leaves control of the outcome with the parties. Settlement rates are high.
Court-Annexed Mediation in Indonesia
Supreme Court Regulation No. 1 of 2016 on Mediation Procedures in Court requires mediation in most civil cases before the court examines the merits. Failure by the claimant to participate in good faith may lead to the claim being declared inadmissible. A settlement reached in mediation may be made into a deed of settlement (akta perdamaian) by the court, which has the force of a final judgment.
In England and Wales
The courts strongly encourage alternative dispute resolution, and in Churchill v Merthyr Tydfil County Borough Council (2023) the Court of Appeal confirmed that a court may order parties to engage in a non-court dispute resolution process, provided that doing so does not impair the very essence of the right to a fair trial and is proportionate.