TINJAUAN MASLAHAH MURSALAH TERHADAP MEDIASI ELEKTRONIK SEBAGAI ALTERNATIF PENYELESAIAN SENGKETA DI PENGADILAN AGAMA

This research stems from the conflict between ideality (das sollen) and reality (das sein) in the regulation and implementation of electronic mediation in Indonesian courts, particularly in the Religious Court of Malang City Class 1A. The regulation of electronic mediation in the Supreme Court Regulation Number 3 of 2022 seems to contradict the principles of a simple, fast, and low-cost judiciary, which should encompass effectiveness at every stage of the judiciary process. Although electronic mediation offers flexibility, it often reduces the effectiveness of interaction between parties due to indirect communication. Preliminary research at the Religious Court of Malang City in 2023 showed that only one principal party conducted mediation electronically, indicating the low implementation of electronic mediation in practice. This study focuses on two main issues related to the regulation of electronic mediation in Indonesian courts in general and its implementation practices in the Religious Court of Malang City Class 1A, as well as how the concept of Maslahah Mursalah is applied in electronic mediation in the Religious Court of Malang City Class 1A. Using a mixed-method research approach that combines normative and empirical research, this study found that the regulation of electronic mediation in Indonesia accommodates the principles of voluntariness, confidentiality, effectiveness, security, and accessibility based on Supreme Court Regulation Number 1 of 2016. However, the practice in the Religious Court of Malang City Class 1A shows ineffectiveness in terms of legal substance, structure, and culture. The review of maslahah mursalah according to Imam Malik bin Anas indicates that electronic mediation is not relevant within the scope of daruriyyah and hajiyyah benefits, and only constitutes tahsiniyyah. Furthermore, electronic mediation no longer demonstrates public benefit (maslahah al-'Amm) in the post-Covid-19 era due to the ineffectiveness of communication between parties.