Based on our investigation, there was no explicit definition of litigation in the legislation. However, Article 6 paragraph (1) of Law Number 30 Year 1999 concerning Arbitration and Alternative Dispute Resolution (“Arbitration Law and APS”) reads:
“Disputes or civil disputes can be resolved by the parties through alternative dispute resolution based on good faith by ruling out litigation settlement in the District Court.”
Dr. Frans Hendra Winarta, S.H., M.H. in his book Dispute Resolution Law (pp. 1-2) says that conventionally, dispute resolution in the business world, such as in trade, banking, mining projects, oil and gas, energy, infrastructure, and so on is done through litigation processes. In the litigation process, the parties contradict each other, besides that the litigation dispute resolution is the final means (ultimum remidium) after the other alternative dispute resolution has not produced results.
The same thing was said by Rachmadi Usman, S.H., M.H. in his book Mediation in Court (p. 8), that in addition to going through court (litigation), dispute resolution can also be resolved outside the court (non litigation), which is commonly called Alternative Dispute Resolution (ADR).
From the foregoing we can know that litigation is the settlement of disputes between the parties conducted before the court.
According to Article 1 number 10 of the Arbitration Law and the APS, Alternative Dispute Resolution is a dispute resolution agency or dissent through a procedure agreed by the parties, namely settlement outside the court by means of consultation, negotiation, mediation, conciliation, or expert judgment.
Arbitration itself is a way to settle a civil dispute outside the general court which is based on an arbitration agreement made in writing by the parties to the dispute (Article 1 number 1 of the Arbitration Law and the APS).
Frans Winarta in his book (pp. 7-8) outlines the understanding of each dispute resolution agency as follows:
a. Consultation: an action that is “personal” between a certain party (client) with another party who is a consultant, where the consultant gives his opinion to the client in accordance with the needs and needs of his client.
b. Negotiation: an effort to resolve disputes between parties without going through a court process with the aim of reaching mutual agreement on the basis of more harmonious and creative cooperation.
c. Mediation: a way to resolve disputes through a negotiation process to obtain the agreement of the parties with the assistance of the mediator.
d. Conciliation: the mediator will act as a conciliator with the agreement of the parties by seeking an acceptable solution.
e. Expert Assessment: expert opinions on matters of a technical nature and in accordance with their area of expertise
Read too : Difference between Litigation and Non Litigation
However, in its development, there is also a form of settlement outside the court which turned out to be one of the processes in the settlement carried out in court (litigation). We take the example of mediation. From this article we know that mediation is an out-of-court settlement, but in its development, mediation is carried out in court.
Rachmadi Usman, (Ibid, p. Vii-viii) said that with the enactment of Supreme Court Regulation No. 1 of 2008 concerning Mediation Procedures in the Court, in lieu of Supreme Court Regulation No. 2 of 2003 concerning Mediation Procedures in the Court, then every particular civil case that will be tried by a court judge in the general court and religious court environment is required to first take mediation procedures in the court
Furthermore, Rachmadi Usman, as he quoted from an academic text prepared by the Research and Development Center for Law and Justice of the Supreme Court of the Republic of Indonesia, said that the mediation institution was not actually part of a litigation institution, where at first the mediation institution was outside the court. But now the mediation agency has crossed into the court. Developed countries in general, among others, America, Japan, Australia, Singapore have mediation institutions, both outside and inside the court with various terms including: Court Integrated Mediation, Court Annexed Mediation, Court Dispute Resolution, Court Connected ADR, Court Based ADR, and others.
From the explanation above it can be seen that arbitration, consultation, negotiation, mediation, conciliation, or expert judgment are alternatives to settling disputes outside the court. That is, it is not part of the litigation institution although in its development there are also those that are part of the litigation process, such as mediation conducted in court. Whereas what is meant by litigation itself is the settlement of disputes between the parties conducted before the court.
Legal basis :
1. Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution
2. Supreme Court Regulation (PERMA) No. 1 of 2008 concerning Mediation Procedures in the Court.
Reference :
1. Frans Hendra Winarta. 2012. Legal Dispute Resolution. Jakarta: Sinar Grafika.
2. Rachmadi Usman. 2012. Mediation in Court. Jakarta: Sinar Grafika.