INTERPRETASI TERHADAP KETENTUAN KEHADIRAN PARA PIHAK DALAM MEDIASI PERKARA PERCERAIAN PADA MASA PANDEMI COVID-19 (STUDI KASUS DI PENGADILAN AGAMA CILACAP)

ALFIANITA ATIQ JUNAELIS SUBARKAH, NIM. 18103040049 (2022) INTERPRETASI TERHADAP KETENTUAN KEHADIRAN PARA PIHAK DALAM MEDIASI PERKARA PERCERAIAN PADA MASA PANDEMI COVID-19 (STUDI KASUS DI PENGADILAN AGAMA CILACAP). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Mediation is one of Alternative Dispute Resolution methods that has been adopted to the civil case examination on court litigation and regulated in PERMA No. 1 of 2016. In mediation, the disputant (principal) should attend in person to make reconciliation for their problem, especially in case of divorce between husband and wife. Muslim people can file for divorce to the ‘Pengadilan Agama’. But in situation of COVID-19 global pandemic, there are resistances to disputants to attend in the mediation process. To respond this, Pengadilan Agama Cilacap make adjustments from the implementation of PERMA and make discretion in limitations during the pandemic. Formulation of the problems in this research are: 1) How is the application of PERMA No. 1 of 2016 regarding the presence of principals in mediation of divorce cases during the COVID-19 pandemic at Pengadilan Agama Cilacap? 2) Why the judges give alternative reasons on principal's absence in mediation? 3) Is the interpretation of principal’s presence in mediation during COVID-19 pandemic in line with progressive legal theory? The research is analytical descriptive with facts, phenomena, and data presented systematically according to the conditions at the field. The approach used isjuridical-empirical with data collection techniques through observation, interviews, and document studies. The type of analytical method is qualitative with inductive thinking processes, and the data collected from Pengadilan Agama Cilacap. Prof. Satjipto Rahardjo's theory of progressive law or progressive legal theory is being used which resists law in stagnant condition and insist that law is always in the making. According to this theory, law is for humans, not the opposite, so the law was created to achieve justice, happiness, and prosperity for humans. Through this theory, it will be examined whether the discretion or deviations made by Pengadilan Agama Cilacap are in line with progressive legal theory. The conclusion of the research is the alternative reasons have been given in the implementation of principal's presence in mediation process of divorce cases according to PERMA No. 1 of 2016, in situation of COVID-19 pandemic. The alternative provision is given by Pengadilan Agama Cilacap to maintain the health and safety of the lives of all parties, to facilitate and shorten the trial, and to protect principal's interests and rights. Viewed from a progressive legal theory, the action of the Pengadilan Agama Cilacap is in line with progressive legal theory that do not focus on legal narrative texts and provide acquittal for legal actors. The acquittal given is with the intention of creating justice, happiness and prosperity for the community

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