Tools in Network: an E-Net Approach to Sharing Mediation Competences.

The culture of mediation and its challenges

We said that all contexts can be open to mediation and according to much evidence from anthropological research the culture of mediation has "always" offered an informal instrument for dispute resolution and preservation of social bonds, probably also because of its previously mentioned psychological elements. Altough institutional systems tend to prevail, the "spirit" of mediation has always been at their side and often irrespectively to their predominance. Along with institutional responses to conflict, mediation has historically represented both an integrative and an alternative or complementary strategy. If the need for mediation seems historically "inborn" in all contexts of social life, our question is why today it is so important to promote the culture of mediation and what the meaning of such operation is.

To answer this question we need to go back to two issues we have already mentioned while analysing the "current" need for mediation:

1. a trend emerges to a critical revision of the institutional and authoritative approach to conflict and community life management, which has been for centuries the prevailing model of intervention in modern state forms. The current crisis of State "sovereignty" and of its power to guarantee equity and fair resource distribution calls for a change of paradigm to contrast or limit the dominance of the former approach and model. Such contrasting and constraining role can also be played by the referral or "return" to alternative practices of conflict and community life management;

2. those same transformation processes that contribute to determine the decline of the idea of authority (connected to the decline of state sovereignty) also provoke the progressive decline of "traditional" mediation practices and the disappearance of the relevant, likewise "traditional", performing figures. This implies a sort of counter-drive aimed at facilitating the development of instruments for the consensual management of disputes and cohabitation issues arising from the "bottom", from within the network of social relations. The promotion of mediation practices belongs to this trend, even though they cannot be compared to their antecedents. One of the main features of mediation is the presence of recognized and recognizable "mediators", thus the promotion of mediation requires "new" mediation figures, who are clearly recognizable but necessarily different from the past ones.

We wish to emphasize that "traditional" mediators (so called "natural mediators") have often contributed to preserve and "defend" the existing power balance within the social context, even though they did it by checking its internal tensions. This is another reason for the loss of authority of such figures under the pressure of "political" criticism deriving from the progressive success of pluralism of values and the evolution towards "modernity" of individual needs. Every one remembers the figures of the "sage" and the "vicar". On the contrary, the institutional approach to conflict and community life management represented and performed by States took its inspiration, at least formally, from the progressive success of the principles of democracy, social justice and human rights.

Furthermore, we wish to point out that promoting a culture of mediation does not simply mean restoring or substituting past practices and figures. Even when we talk of "re-discovery" or "return" to mediation, we refer to the appreciation of consensual and participative strategies which have always pervaded our communities, but have now to be implemented to deeply altered contexts as responses to thoroughly different needs. The culture of mediation becomes a challenge towards an assumption of responsibility by society as a whole.

Now we can try to answer the initial question concerning "informal vs. formalized mediation". It is important to understand some basic elements of spontaneous mediation in order to promote more specific and formalized mediation strategies and techniques (for instance in the following fields: family, school, criminal justice, professional life, health). The definition of specific and formalized mediation "settings" can also improve the popularity of spontaneous forms of mediation. This restoration or consolidation of the "spontaneous nature" of mediation is the most crucial aspect of mediation culture. Accredited and recognizable formal mediation "settings" also represent instruments and examples for the production, guidance and development of an habit to spontaneous mediation, which in turn is the basis to give formal "settings" more and more strength. Formal mediation is the product of specific and professional "settings" which manage and control its outcome. Spontaneous mediation originates in civil society and it is by it managed and controlled. As these two processes are interdependent, the promotion of a culture of mediation is ultimately an activation and strengthening of the virtuous circle between formal and spontaneous mediation. In this context, we can recall the contribution of the French philosopher Jean-Fançois Six, who classifies four types of mediation: 1) "creative" mediation that helps to establish new social bonds between individuals or groups; 2) "renewing" mediation that improves social bonds between individuals or groups or repairs loosened ones; 3) "preventive" mediation which aims at avoiding, by anticipating it, the explosion of latent conflicts; 4) "healing" mediation which aims at solving conflicts (Le temps des médiateurs, Ed. du Seuil, Paris 1990, p.164).

In assessing the importance of mediation we must also consider the following remarks. By any critical revision of the adjudicative-institutional approach to conflict and community life management and by any re-appreciation of the participative-consensual approach as the origin of mediation practices, we consider simplistic and dangerous any interpretation of the law as having a mere disrupting and conflict-generating function. Formal, adjudicative and institutional approaches to conflict and community life were devised also as "healing" instruments. Such approaches, paradigmatically represented by modern states, are nothing but an evolution of those "spontaneous" and "natural" consensual practices and a reaction to their progressive insufficiency and inadequacy to guarantee equity and protection to weaker people in communities. Briefly, Law and State are not only symbols of the rule of the stronger (or the richer) nor just the "legalization of a social order" ratified by that power. The purpose of any legislation and of its formal instruments is also the "protection of the weaker" (and historically this task has also partly been fulfilled). The protection of weaker people in communities is certainly one of the "illusions" of any law theory, certainly a "necessary illusion" representing a strong point in favour of the law that cannot be offered by the participative-consensual approaches. Today we are fully aware of the ambiguous consequences of the law which are often opposed to its intentions and purposes. Likewise, it becomes necessary to contrast the useless pervasiveness of Law and State by promoting an alternative approach (i.e. mediation) which is able to produce a new "order" based on negotiation and consent and the assumption of individual and collective responsibility. We need to "treat the treatment" and, as we said, promote a "different way to see things". But there is a flaw in this argument, or rather an issue that deserves a closer analysis: alternative strategies of conflict management are subject to the risk to introduce or re-introduce social control mechanisms (of a "paternalistic" or "maternalistic" kind) lacking those safeguards (and responsibility) that institutional law usually guarantees.