PERAN HAKIM SEBAGAI MEDIATOR DALAM PENYELESAIAN PERKARA PERCERAIAN DI PENGADILAN AGAMA SLEMAN KELAS IA

Mgs. M. Hanief Fathurrahman, S.H, NIM.: 20203012013 (2023) PERAN HAKIM SEBAGAI MEDIATOR DALAM PENYELESAIAN PERKARA PERCERAIAN DI PENGADILAN AGAMA SLEMAN KELAS IA. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The judiciary, as the executor of judicial power, has authority regarding law violations and order in society. However, as experienced by the Indonesian people, the system actually makes solving a case take time, which is not effective or efficient. In practice, the application of the simple, fast, and low-cost principle has not been fulfilled, due to the large number of incoming cases, the limited number of judges, and the lack of facilities for first-level court institutions. The Sleman Religious Court in its application is still not optimal to resolve disputes satisfactorily, fairly, peacefully, and appropriately. Therefore, mediation in a case of disputes of the heart requires a settlement in accordance with a mutual agreement, but the fact is that from 2019 to 2022, only 113 out of 1682 total mediations were successful. Thus, the settlement of divorce cases through mediation is still low. The problems include: 1) the process of carrying out mediation in divorce cases; 2) the role of the judge as a mediator in the settlement of divorce cases; and 3) the success and failure factors in mediation. In this study, we used PERMA rule Number 01 of 2016 concerning Mediation Procedures in Courts, which is supported by the theory of maṣlaḥah. The type of this research is field research using a juridical-empirical approach and has the nature of analytic-descriptive research. While the data analysis method used is qualitative using deductive methods. Methods of data collection using the methods of observation, interviews, and documentation. The results of the research show that the mediation process has three stages, namely, pre-mediation, process mediation, and the end of mediation. Overall, the stages of the mediation implementation process are in accordance with existing procedures. The role of the judge as a mediator in the settlement of divorce cases has been carried out in accordance with PERMA Number 01 of 2016 and Law Number 48 of 2009. So, the role of the judge as a mediator consists of: 1) giving advice; 2) giving impressions; 3) creating an atmosphere; 4) finding common ground; and 5) discussing agreements and solutions. It's just that in theory, maṣlaḥah reviews the role of judges in order to have the capability to be judges. First, expertise in digging into problems down to their roots will have an impact on the accuracy of the solutions offered and help solve problems in an applicable and appropriate manner. Second, practical and methodological knowledge of sharia is necessary for the realization of mashlahah-based mediation and resistance to damage (maḍarat). Success factors in mediation are: 1) the mediator; 2) faith and cooperation; 3) third parties; and 4) morals and spirituality. The failure factors in mediation are: 1) limited time, 2) lack of good faith from all parties, and 3) the mediator himself.

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