Understanding the Combined Process (Med-Arb), An Opportunity for Dispute Resolution Concepts in Industrial Relations

Legal Literacy - In the development of dispute resolution in law international trade, the concept of Combined Process (Med-Arb) or hybrid method has emerged as an attractive solution. This article explains how this method combines mediation and arbitration in dispute resolution, and how this can be applied in the context of industrial relations disputes in Indonesia. By: Dedon Dianta

What is Combined process (Med-Arb)?

Combined process (Med-Arb) is a dispute resolution method that combines mediation and arbitration into a single process. This method aims to achieve a more efficient and effective resolution by utilizing the advantages of each method. This concept is also often referred to as a hybrid method. In this case, hybrid refers to the change in the role of the third party from initially being a mediator who reconciles the parties to being an arbitrator who resolves the parties' disputes if mediation fails. Combined process (Med-Arbitration) has become known as a dispute resolution effort in its development in international trade law. The hybrid method in dispute resolution is relatively new in Indonesia. The Indonesian National Board of Arbitration (BANI) has used its procedures and rules in 2006 since its development from 2003. The hybrid process of dispute resolution is a combination of arbitration-mediation, mediation-arbitration, and arbitration-mediation-arbitration.

The use of the method Combined process (Med-Arb) in resolving industrial relations disputes

In this writing, the author argues that this combined process (med-arb) can also be implemented in resolving industrial relations disputes. This is because the Law on Industrial Relations Dispute Resolution (UU PPHI) regulates dispute resolution through arbitration and mediation. However, it should be emphasized that there must be an agreement between the parties in using this combined process (med-arb) concept, both before and during a dispute, which also applies to the context of mediator selection. Law 48/2009 concerning Judicial Power is a legal umbrella for resolving industrial relations disputes by implementing combined process (med-arb). It is stated in Article 38 paragraphs (1) and (2) which reads:

(1) In addition to the Supreme Court and subordinate courts and the Constitutional Court, there are other bodies whose functions are related to judicial power. (2) The function related to judicial power as referred to in paragraph (1) includes out-of-court settlement.

Implementation Concept Combined process (Med-Arb) in resolving industrial relations disputes

In industrial relations disputes between employers and labor unions, this combined process (med-arb) concept can be implemented in Tripartite Negotiations (conciliation, mediation, and arbitration). In its implementation, this is done one by one, but it can actually be simplified by conducting mediation and arbitration simultaneously. Of course, by combining these two dispute resolution mechanisms, costs, time, and effort can be saved, and the continuation of contract implementation is guaranteed. The following are the details of the advantages of the combined process (med-arb), namely:

1. It can promise the disputing parties a binding and final decision on issues that cannot be resolved through mediation. A final decision is the main characteristic of the combined process (med-arb).
2. Time effectiveness can be achieved with only one forum, namely the combined process (med-arb). Measurable costs also make this concept more effective compared to settlement through arbitration alone or through the Industrial Relations Court (PHI).
3. Dispute resolution using the combined process (med-arb) concept is a flexibility that allows the parties to find common ground in resolving their disputes. This effort also contributes, at least, to the settlement of industrial relations disputes that contain the principles of justice, benefit, and legal certainty for the disputing parties.

The mediation institution basically has a mediation function as an effort to resolve industrial relations disputes in the manpower agency within the Regency/City. Juridically, the existence of this mediation institution is weak, because the mediator in this case only gives an opinion, and the mediator's opinion can be rejected by the parties who are in dispute. We can see that mediation is only administrative for show, and can be used by employers to be passive in responding to the mediator's opinion, and the party that suffers is the labor union, because it indirectly forces them to continue the case. Factually, lawsuits in the PHI are rarely filed by employers, including lawsuits in cases of Termination of Employment (PHK). The above, ideally, should be resolved at the tripartite level, using the combined process (med-arb) concept, so it is not only mediation, but also arbitration to reduce cases continuing to the PHI. In addition, this settlement concept can create legal certainty between the parties because of the freedom to choose an arbiter, and also the government's role in realizing the settlement of industrial relations disputes in a cheap, fast, fair, and legally certain manner can be carried out well. *This article represents the opinions the author's personal views and does not represent the views of the Literasi Hukum Indonesia editorial team.