Mediation as an Effort to Realize Islah in Sharia Banking Dispute Settlement
Alternative dispute settlement concept in Islamic law is exercised by Islah approach in various forms, such as wilayat al-mazalim, al hisbah, and takhim.
Meanwhile, the alternative dispute settlement concept in prevailing regulation is done by consultation, negotiation, mediation, conciliation, expert judgment and arbitration. Mediation is one form of alternative dispute settlement. In the Indonesian legal system, mediation may be used to resolve non-court disputes and court-annexed mediations under Supreme Court Regulation No. 1 of 2016.
In Islamic law, Islam provides guidance to parties in disputes to reconcile each other, to deliberate to reach mufakat. If it is not agreed then the parties may appoint another party to be a reconciliator of both parties in dispute. If the dispute is also not yet settled, Islam teaches to do takhim or bring the case to the court. Islah according to Islam is a method of dispute resolution which is highly recommended for use in settling disputes. Islah can be interpreted as a peaceful dispute resolution that includes various means of settlement such as negotiation and mediation.
Wirdyaningsih who is a lecturer at the Faculty of Law Universitas Indonesia (FHUI) conducted a study on the similarities and differences between the concept of mediation according to the law in Indonesia and the concept of Islah according to Islamic law. In her dissertation, Wirdyaningsih tried to bridge the form of dispute resolution according to Islamic Law and Law in Indonesia.
The results of her research found that there are similarities and differences between the concept of mediation according to law in Indonesia and the concept of Islah according to Islamic law. The similarity is that both have similarly a peaceful way that is acceptable and satisfies both parties. While the difference lies in the foundation of its philosophy. Alternative dispute settlement in Islam should not violate the principles of sharia. While alternative dispute resolution according to the provisions in Indonesian law is required to comply to the prevailing laws and regulations.
Wirdyaningsih succeeded in defending her dissertation entitled “Mediation as an Effort to Realize Islah in Islamic Banking Dispute Settlement ” in front of the Chairman of the Dissertation Defence Session Prof. Dr. Rosa Agustina, S.H., M.H., as the Promoter Prof. Dr. Dra. Uswatun Hasanah, M.A., Prof. Dr. Takdir Rahmadi, S.H., LL.M. and Dr. Yoni Agus Setyono, S.H., M.H., as the co-promoters and the Member of Examiners were Prof. Dr. Rosa Agustina, S.H., M.H., Prof. Dr. Faturrohman Djamil, S.H., M.A., Dr. Andri Gunawan Wibisana, S.H., LL.M., and Dr. Yeni Salma Barlinti on 21 April 2018 at Djokosoetono Auditorium, FHUI, UI Campus, Depok.
After presenting her dissertation and answering questions raised by the board of examiners, Wirdyaningsih was awarded the title of Doctor of Legal Studies with a very satisfying predicate.
