Syntax Literate: Jurnal Ilmiah Indonesia p�ISSN:
2541-0849
e-ISSN:
2548-1398
Vol.
7, No. 5, Mei 2022
THE USE OF MEDIATION AS AN ALTERNATIVE DISPUTE
RESOLUTION IN THE SETTLEMENT OF AGRARIAN DISPUTES
Sabela Gayo
Fakultas Hukum Universitas Bhayangkara Jakarta Raya, Jakarta, Indonesia
Email: [email protected]
Abstract
In Indonesia the land dispute is a problem that always arises because it
is related to one of the human needs, especially if there is currently an
instruction to the settlement efforts of the land mafia in Indonesaia.
Usually land cases are always through the court diamana settlement of land cases through judicial channels
a lot of shortcomings including very bureaucratic, time consuming labor and
quite a lot of costs. Although the principle of dispute resolution in court is
resolved with fast time and low cost but in reality it
is difficult to implement. One way of Alternative dispute resolution settlement
in agrarian dispute settlement is done through appropriate mediation, the
management, assessment and handling of land cases which is the task of all
levels of society in helping the task of the National Land Agency in resolving
land cases can be resolved quickly.
Keywords: alternative dispute
resolution; land; mediation
Introduction
In everyday life and often also in
business activities, disputes or conflicts often arise. Conflict occurs because
of change and conflict is a competing behavior between two or more people.
Conflict occurs when two or more people race to achieve the same goal or
acquire a limited number of resources. The onset of conflict is a sign of a
crisis in human relationships, and the action that must be taken to resolve the
conflict is to make efforts to improve the relationship. The terms conflict and
dispute are two things that are conceptually different or the same and
interchangeable. Some scholars argue that conceptually there is no difference
between conflict and dispute,while
others argue that the term conflict can be distinguished from the term dispute.
a) the term conflict contains
a broader sense than dispute, because conflict can include disputes of a latent
nature.
b) a dispute is a conflict
that has arisen. Conflict refers to disputes that have or have not been
identified or can be clearly identified. The dispute between the parties is
clearly identified.
c) the term conflict is more
often found in the literature of social and political sciences, rather than the
literature of Legal Sciences, while the term dispute is more often found in the
literature of Legal Sciences.
The arrangement and arrangement of
land in post-Independence Indonesia is the promulgation of Basic Rules of
Agrarian principles, namely Law No. 5 of 1960 which is more familiar to us with
UUPA. The purpose of the law is to lay the foundations for the preparation of
the National Agrarian law which will be a tool to bring prosperity, happiness
and justice for the state and the people, especially the peasant people in the
framework of a just and prosperous society and then also to lay the foundations
for the unity and simplicity of land law and to provide legal certainty
regarding land rights for the people. UUPA is also a reference to the
regulation of the rules governing the relationship of earth, water and space as
well as the natural wealth contained therein. The need for land is not only
known in the present but since man was created by Allah SWT and placed on
Earth. Thus the land is a means and necessity that is
very important for human life. Land is not only seen as an agrarian problem
alone so far identified as mere agriculture, but has developed both the
benefits and usefulness so that the negative impact is increasingly complex,
even the land often causes shocks in the community as well as delays in the
implementation of development.
Data on the number of land dispute
cases recorded in the Justisia application of the
Ministry of Agrarian Spatial Planning/ National Land Agency in the period 2015
to 2020 recorded 31,228 cases consisting of 11,540 disputes, 835 conflicts and
18,835 cases. From these data we can see that most of the 60% are included in
the case of land disputes that are handling and resolving through the
judiciary, 37% of disputes are land disputes on a relatively limited scale and
3% are conflicts that are land disputes that have had a wide impact.
The large number of land disputes at
this time shows an increase in the number of disputes, conflicts and land
matters while ideally the number of cases of disputes, conflicts and land
affairs should be reduced. Settlement of land cases should be done with
firmness in order to achieve legal certainty, measurable and complete. In the
settlement of land cases there is a mechanism that can be taken through the
path of litigation and non-litigation. Land cases are disputes, conflicts or
land cases submitted to the Ministry of Agrarian spatial planning/ BPN and the
ranks below to obtain handling and settlement in accordance with the provisions
of applicable legislation. Land disputes are land disputes between natural
persons, legal entities or institutions that do not have a wide impact while
land conflicts are land disputes that have been tend to have a wide social
impact. Settlement of land disputes through the court is included in the
litigation group where in its implementation must follow the procedural law
that has been established. One alternative to resolving land dispute cases
outside the court is through a mediation mechanism. The mechanism of mediation
implementation as one of the alternative land dispute resolution
that needs to be optimized in its implementation either through the Land
Office, court or independent Mediator.
That to resolve land cases that are
effective, efficient and with legal certainty can be resolved through
mediation. To reduce the existing weaknesses in dispute resolution through
mediation, namely that its implementation depends on the good faith of the
parties, mediation can be done in the manner specified in Perma
Number 1 of 2008, namely the implementation of land mediation carried out with
the help of a certified mediator. To avoid default by one of the parties, the
parties may submit a peace agreement to the competent court to obtain a peace
deed by filing a lawsuit (Article 23 paragraph 1 Perma
No. 1 of 2008). In this way, the agreement of the parties can be strengthened
in the form of a peace act (Acta van dading). With
the deed of peace, if one of the parties is in default, it can be applied for
execution to the court.
Research
Methodology
Thus, in principle mediation is a way
of resolving disputes outside the court through negotiations involving third
parties that are neutral (non-intervention) and impartial (impartial) and
accepted by the parties to the dispute. The third party is called a mediator or
mediator whose job is to assist the parties to the dispute in solving the
problem, but does not have the authority to make decisions. With mediation, it
is expected to reach a common ground in resolving the problems faced by the
parties, which will then be poured as a mutual agreement. Decision - making is
not in the hands of the mediator, but in the hands of the parties to the
dispute. With the mediation venue, the parties can decide for themselves and
choose where they want to hold this mediation. Mediation can be held anywhere
in the world.
Results And
Discussion
1. Alternative Dispute Resolution In
Agrarian Dispute Resolution
History dated September
11, 2003, the chairman of the Supreme Court issued a regulation of the Supreme
Court of the Republic of Indonesia (PERMA) no.02 of 2003, on the procedure for
mediation in court. With the release of this PERMA revoke the circular of the
Supreme Court No.1 year 2002 on the empowerment of the
Court of First Instance implement the institution of peace, because it is
considered incomplete. Consideration of the enactment of this PERMA is.
a) the integration of
mediation into the proceedings in court can be one of the effective instruments
to overcome the possibility of accumulation of cases in court.
b) the mediation process is
faster, cheaper and can provide access to the parties to the dispute to obtain
justice to obtain a satisfactory resolution of the dispute it faces.
c) institutionalization of
the mediation process into the judicial system can strengthen and maximize the
function of judicial institutions in dispute resolution.
PERMA No.02 year 2003
revised with the release of PERMA no.01 of 2008, the Perma
is expressly regulated which is the object (type of case that can be mediated),
namely all civil disputes submitted to the court of First Instance, except :
a) cases resolved through
Commercial Courts.
b) cases resolved through the
Industrial Relations Court.
c) objection to the decision
of the Consumer Dispute Resolution Agency (BPSK).
d) objection to the decision
of the business competition Supervisory Commission (KPPU).
The mediation process
outside the court is not regulated in the legislation, the regulation is only
limited to the use of mediation, but not about the process of organizing mediation.therefore, the mediation
process is based on the experience of mediation practitioners and expert
research. Absence of settings the mediation process in the law is both a
strength and a weakness of the mediation process. The absence of a mediation
stage arrangement is seen as the power of mediation is because it provides
flexibility for both parties and mediators.
To organize the mediation
process according to the needs of the parties in accordance with the type of
problem of the case.It is
referred to as weakness because the lack of regulation shows the lack of
standardization and certainty.The mediation process
is basically not regulated in laws and regulations,so
the mediation process tends to be universal and not legalistic. Therefore,
knowledge of mediation processes and techniques can be obtained through written
works of mediation practitioners, especially mediation practitioners in
English-speaking countries, especially the United States and Australia.
Provisions of Article 23C
Presidential Regulation No.10 of 2006 on the National Land Agency, which said
that the deputy for the assessment and handling of disputes and conflicts at
the National Land Agency held an alternative implementation function of solving
problems, disputes and land conflicts through forms of mediation
,facilitation and others. Provisions Of Article 23 Of Presidential
Regulation No.10 of 2006 it was the government's policy to use mediation as one
way to resolve land disputes. Previously, the approach was carried out by
deliberation and consensus for the settlement of land disputes conducted by the
National Land Agency. The use of new mediation is explicitly stated in
Presidential Regulation No.10 of 2006, there are no detailed legal provisions
on the use of mediation in the context of land disputes. The existing
provisions hanaya Technical Guidelines published by
the National Land Agency no.05 / Juknis / D.V/2007 on
Mediation implementation mechanism. One of the laws that form the basis is law
no.30 of 1999 on arbitration and alternative Dispute Resolution, in this law
expressly stipulates that the use of Arbitration and alternative Dispute
Resolution is voluntary, thus the use of mediasai for
land disputes is also voluntary.
There are 3 types of
operational models of land disputes, namely
a) land disputes, namely land
disputes whose parties consist of individuals or groups.
b) land conflicts,namely land disputes involving governments,institutions or groups of indigenous peoples
against groups of citizens in a missal.
c) Land cases, namely land
disputes whose process has been through a trial in court and subsequently
responded by the National Land Agency.
Article 39 paragraph (4)
regulation of the head of the Land Agency (PERKABAN) No.3 year 20011 States,
before the settlement decision is set to do the title of the case,after that new mediation with
the parties to the dispute.at the BPN regional office level, dispute resolution
is included in the field of assessment and handling of land disputes and
conflicts.
There are several models
of land dispute resolution. The following is explained by the dispute
resolution model based on law no. 30 of 1999. Dispute resolution under this law
is preceded by a direct meeting by the parties within a maximum of 14 days and
in the event of a Pakatan agreement it is set forth in a written agreement. If
the parties are unable to reach an agreement within 14 days, upon the written
agreement of the parties the dispute or disagreement is resolved through ban
tuan mediator. If the appointed mediator is also unable to help resolve the
dispute or the mediator does not manage to bring the two parties together, then
the parties may contact an arbitration institution or Alternative Dispute
Resolution institution to appoint a mediator.
After the appointment of a
mediator by lem baga
arbitration or Alternative Dispute Resolution institutions, within a period of
7 days, the mediation effort must be initiated. Based on Article 6 paragraph
(6) of Law No. 30 of 1999, efforts to resolve seng
keta through a mediator appointed by lem baga arbitration or alternative institutions to resolve the
dispute must be able to resolve within a maximum of 30 days and obtain a
written agreement signed by all parties concerned. The agreement on the
settlement of disputes or disagreements in writing is final and binds the
parties to be implemented with ITI kad baik and must be registered in the District Court no later
than 30 days from the marking nganan. The settlement
agreement of disputes or disagreements must be carried out within a maximum of
30 days from the date of listing. If peace efforts are not achieved, the
parties, based on the agreement in writing, may submit their settlement efforts
through arbitration or ad-hoc arbitration.
The model of dispute
resolution through mediation based on Law No. 30 of 1999 is that the parties
must first undergo negotiation efforts. Furthermore, if negotiations fail, the
parties may appoint a mediator. In Law No. 30 of 1999, in principle, it gives
the parties discretion to determine who the mediator is on the basis of their
agreement.
2.
The Law Powers The Agrarian Mediation Agreement
Some stages in land
mediation are:
a) first, the preparation to
bring the two parties together. In relation to these preparations, a Tor media
must know the subject matter and sit down the problem. Analyze whether the
problem can be solved through mediation or not. Furthermore, a tentative
dispute handling team was formed, because there are times when the authorized
structural officials can directly organize mediation. Furthermore, prepare the
materials needed to mediate the subject of the dispute, then make a review
resume so that the mediator has mastered the substance of the problem,
straighten the problem, suggestions and even warnings if the agreement sought
will tend to violate regulations in the land sector, for example me violating
the interests of the holder of dependent rights, the interests of other heirs,
violating the nature of the provision of rights. In this stage ends with the
determination of time and forging mediation.
b) second, the invitation.
This invitation is submitted to the interested parties, relevant agencies (if
deemed necessary) to hold a dispute resolution deliberation and asked to bring
along the necessary data/information. The meeting structure is arranged with
the position of Tem pat sitting "U seat" or circle.
c) Third, mediation
activities. This activity was initiated by an effort to overcome barriers
between parties (personnel relations between parties). So that the atmosphere
between the two sides of the dispute is more fluid, familiar and not rigid. It
is at this initial stage that the mediator needs to provide explanations, among
others: (A) as an impartial third party (neutral position); (b) the will of the
parties is not limited; (c) the position of the parties and the mediator's own
position must be neutral; (d) the key of this session is the affirmation of the
willingness of the parties to resolve disputes through mediation and by the
mediator of the National Land Agency of the Republic of Indonesia; and (e) in certain
matters based on their authority (authoritative mediator may intervene in the
process of seeking agreement on the disputed issue (not impartial), to place
the agreement to be reached in accordance with land law. This needs to be
understood by the parties so as not to cause a priori conjecture and
clarification of the parties.
d) fourth, equalize
understanding and set the agenda of deliberation. The parties are asked to
convey their problems and alternative settlement options offered, so that the
common thread is drawn per problem so that the negotiation process always
focuses on the issue (issue). Here there can be misunderstandings both about
the problem, the type related to the dispute or things related to the
definition of state land status and dual indivi
rights. It takes effort/agreement to equalize understanding of things. The
Mediator / BPN must provide correction if the understanding of the agreed issue
is not in accordance with the laws and regulations, so that there is no error, selanjutnaya agenda of the deliberation.
e) fifth, identify interests.
This identification is done to determine the actual subject matter, as well as
whether there is relevant si as material for
negotiation. The subject matter should be focused in the subsequent mediation process.
If there is a deviation the mediator should remind to return to the focus of
the problem. The interests that the mediation focuses on can determine the
license agreement. The interest here does not have to be seen from the legal
aspect only, it can be seen from other aspects as long as it is possible to
conduct negotiations and the results do not violate the law.
f) sixth, generalization of
the options of the parties.
g) Seventh, determination of
the selected option.
h) eighth, final
negotiations.
i) ninth, formalization of
agreement on dispute resolution. Formulated in the form
agreement or agreement. With the agreement substantially
mediation has been
done. Each mediation
activity is poured Da-lam mediation minutes as a report material to the
authorized officials to ditin-d follow up in accordance with the regulations
that are-sell. In order to have binding powers the minutes are signed by the
parties and the mediator.
Mediation agreement is
defined as an agreement reached by the parties with the help of a mediator to
resolve or end a dispute. Article 39 Of Law No. 14 of 2008 on freedom of Public
Information states :� the decision of the Information
Commission derived from the agreement through mediation is final and binding�.
This provision does not expressly mention that the decision of the Information
Commission has an executorial title, so the understanding of jurists about the
provisions of Article 39 may vary.
Article 6 paragraph (7) of
law no.30 of 1999 on arbitration and Alternative Dispute Resolution, confirms
that the agreement on dispute resolution in writing is final and binding on the
parties to be implemented in good faith and must be registered in the District
Court within 30 days of signing the mediation agreement. Article 72 Regulation Of The Head Of The National Land Agency No.3 of 2011
mentioned the criteria for resolving land disputes, one of which is with
Category 3, namely by mediation.
The legal force of the
mediation agreement in land disputes, that is, if the land has been certified,
it can be executed because in the certificate there is a symbol of the garuda bird which is the same function as the court's
decision which reads �For the sake of Justice based on the Godhead of the
Almighty� , because the condition of a new decision can be executed if it has irah irah for justice based on
the Godhead of the Almighty and if in the decision there is a symbol of the
Garuda bird. If the land has not been certified then the power of the mediation
depends on the parties who do so because the mediation is done voluntarily
without coercion. This is if we connect with Presidential Regulation No. 1 of
2008, which orders every district court judge to examine civil cases, must
mediate first.
Conclussion
Mediation provided for in law no.30
of 1999 on arbitration and Alternative Dispute Resolution can be used for
completion of land disputes, with 3 stages of the mediation process, namely the
preparation stage, the stages of mediation meetings and post-mediation stages.
The legal power of land dispute resolution with mediation can be executed
because if the land dispute has had a certificate because the Garuda bird
symbol is equal in strength to irah-irah for justice
based on Godhead.If it has not been certified, it
depends on the parties who mediate because mediation is done voluntarily. BPN
as an institution related to land disputes should be able to realize mediation
in the BPN environment by making rules to be able to involve indenpendent mediators to be involved in alternative Disputee Rosoluiton in agrarian
disputes that are certified and competent so that not only employees or the BPN
environment can become agrarian mediators.
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