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The issue of penal mediation

It is well known that a longstanding tradition of penal justice culture is based on the fact that the management of violence and conflicts and the administration of justice are not available directly to citizens but are more or less completely in the hands of state representatives. The culture of mediation, especially in the penal field, contrasts this assumption, or at least it challenges it by introducing elements that the culture of penal justice had erased: the victim's opinion (traditionally irrelevant in justice administration), party negotiation (according to the juridical tradition a crime is such as it is mentioned in law codes, irrespective of any agreement reached by the parties involved) and the consent on the outcome of proceedings (a court decision does not imply nor seeks such consent). In short: the administration of justice is a public and not a private action.

But this is not what we mean as the "issue" of penal mediation; here we wish to underline that penal mediation has different and often diverging roots.

The first root is "restorative justice", which is often understood as a synonym for penal mediation and whose aims are hardly referable to a unitary standpoint. The main aims of restorative justice are: a) "refunding" the victim as a compensation for the damage caused by the offence ("acknowledgment of the victim", of his/her individual value, of his/her individual needs, of the "reduction" of his/her potential as a consequence of the damage suffered); b) "reconstruction" of the broken social bond through restoration of the damage that the offence caused to the community where both victim and offender live; c) whenever possible, substituting sentencing with a more effective "reparation" of damage (in more or less material or symbolical terms), because this latter solution is more efficient both to compensate the victim and to make the offender aware of his/her responsibilities, resocialize him/her and promote social peace in the community; d) "restoration" of communication levels between the offender, the victim and their community, that the offence had interrupted.

The complex ambitions of "restorative justice" are condensed in the various meanings of the adjective "restorative" as attributed to the term "justice". Besides its well sounding and charming semantic value the problem of its implementation as consistent operational institutions and practices remains. In short: how to compensate the victim and acknowledge its dignity without stressing the afflictive character of the offender's punishment.

The second root derives from the contributions of criminology on: a) the social construction of deviance; b) the decisive role of censure and marginalization (as enacted by agencies of social control) in determining the construction of "deviant careers"; c) the degrading aspects of afflictive penal systems and the necessity to identify non custodial measures and to avoid the devastating effects of "prisonization" (the global effect on the individual and his/her future social performances as a consequence of detention and of his/her contact with the so called "total institutions"). In this view, mediation is less centred on the victim and the social damage derived from the offence: it is rather a "diversion" strategy to avoid the offender getting in contact with the penal system and refer crime management back to its social context of origin. Mediation promotes also a real "awareness of personal responsibility" for the meaning and the consequences of the offence in a much better way as compared to the mere afflictive punishment. However, also to raise crime awareness among involved parties, mediation must start from the offender's acknowledgment of personal responsibility while the figure of the victim gradually takes shape. Therefore mediation begins with a role assignment (i.e. labelling) of offender and victim as absolutely defined roles and not only as products of social constructions; this implies the risk for mediation to impair most of the process of social labelling deconstruction it wished to promote.

The third root is to be found in the intention to "deflate" the institutional justice system as far as possible. This idea goes against the juridical tradition of progressively extending institutional actions to the largest number of fields and criminal cases. Deflating is not only reducing the workload of the "law machinery" so as to allow it a larger operational efficiency, it mainly aims at removing a whole series of crimes from the strict legal field by entrusting their resolution to social practices directed to the very contexts where offences originate and managed by different community agents. This deflative need requires an analysis of how or to which extent mediation is to be considered an autonomous and alternative instrument to the legal system (i.e. an instrument empowered to manage what is not any longer under the jurisdiction of the institutional legal system) or is rather to be seen as a practice within the "justice system" and still subject to its control.

This rapid outline of the cultural origins of penal mediation is one of the many possible ones; for a more detailed analysis of the background of law theory see the recent work by Grazia Mannozzi, La giustizia senza spada, Giuffré, Milano 2003.

As we said, our emphasis here is on the fact that the introduction of mediation practices in the penal field originates and it is developed on problematic and contradictory grounds. Many approaches rightly support mediation as a valid and precious instrument, but they reach this conclusion from very different cultural viewpoints and their aims cannot easily be merged into a single and consistent intent. Giving the victim more dignity, avoiding the risk for the young offender to come in contact with the penal system, making the offender aware of his/her own responsibility, reconstructing social communication, deflating judicial institutions or limiting their penetration: penal mediation can help in all this. But the problem is to reconcile these objectives, i.e. to determine whether they are on the same level or must be hierarchically ordered according to the priority of mediation activities.

It is fundamental to define priority objectives of mediation in order to determine the most adequate technical options, which can be of a conciliatory type, or be inspired by humanitarian approaches promoting experience processing without leaving out conciliatory forms, or again other forms mainly aimed at producing constructive transformation of individual roles and experience.

The attribute "experimental" is the most adequate to define penal mediation. There are several experiments in progress with surely positive and encouraging outcomes. The same can be said of the many inputs coming from international and European recommendations. The experimental character of mediation programmes also accounts for their lack of homogeneity which is a sign of richness and liveliness. But we cannot be surprised by the uncertainty in legislation. However, it is crucial to build a common language, especially concerning the objectives, i.e. the possible options, in order to draw the attention of all the parties involved (judiciary, juvenile justice system, staff of local authorities and other agencies, non governmental organizations etc.) and open a fruitful and serious dialogue between all actors and parties entering mediation.

Finally, we wish to remind that the definition of priority objectives of any mediation activity and the search for the the proper consent on them is fundamental to carry out any evaluation of current experiences.