Gita Armarosa Putri Sembiring

2010/295888/HK/18283/HI
Legal Writing - 3
Does every case can be settled through mediation?
Pursuant to Article 4 of Supreme Court Regulation Number 1 Year 2008, it is stipulated that:
Unless the disputes that shall be settled through commercial court proceeding,
industrial court, objection towards the decision of Consument Dispute Settlement
Body, and objection towards the decision of Commission of Supervision for Business
Competition, all the civil disputes that submitted to the First Chamber shall be tried to
be settled through the alternative dispute settlement by the help of mediator.
Can criminal case be settled through mediation?
Barda Nawawi Arief once mentioned that principally, criminal case cannot be settled through
alternative dispute resolution, except under these 2 conditions:
a. For a criminal case conducted by a juvenile under 8 years old. Pursuant to Law
Number 3 Year 1997 concerning Juvenile Trial, it is known that the age limitation that
allow for the submission to the case is at least 8 years old and has not reach 18
years old. For children under 8 years, investigator of the case shall put the children
back to their parents, or guardians or to the Social Department.
b. In the case of misdemeanor that merely has such fine as the punishment. Article 82
of Indonesian Criminal Code, it is stipulated that the authority to prosecute such
delict of misdemeanor shall be elapsed if defendant already pay the maximum
amount of the fines and any other fees that incurred, if the prosecution has been
started.
However, Barda Nawawi Arief also emphasized that the mediation context in criminal case
shall not be similar to the context applied in the civil case.
Can a lawyer be a mediator?
Pursuant to Article 8 of Supreme Court Regulation Number 1 Year 2008, it is stipulated that:
The disputing party can choose a mediator among these choices:
a. Judge that not examines the case at the related court.
b. Lawyer or legal academician
c. Profession other legal profession that considered by the disputing parties as
capable in handling such cases
d. Board of case examiner
e. The combination of point (a) and (d) or the combination of point (b) and (d) or the
combination of point (c) and (d)
Furthermore, the Law Number 18 Year 2003 concerning Advocate also does not mention
such prohibition. Thus, it can be concluded that a lawyer may act as a mediator as well.
However, it is noteworthy that the lawyer who acts as a mediator has to deliver his duties
in compliance with Mediators Code of Conduct (Article 24(1) of Supreme Court
Regulation Number 1 Year 2008).