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

Social and criminological roots

The path leading to success for reparative justice in contemporary life is a complex and articulated one. Reparative culture finds its inspiration in several trends of thought of a sociological and criminological nature, rather than a juridical one.

The first input was given by anthropology.
While investigating and analysing the microcosm of African or central American "simple communities", studies concerning juridical anthropology pointed out the existence of private ways of solving conflicts, which were parallel and alternative to formal civil and penal trials. Among the best known examples in the literature of this sector we can find Gibbs' study concerning the mediation system called "moot", used by the Liberian Kpelle community. The analysis of the African mediation structure shows it is basically an informal process, carried out with the active involvement of the local community, or rather of that part of the community which has been touched by the conflict. Several studies of this kind show the existence ? in many communities mainly in Africa ? of peculiar ways of solving conflicts whose essential characteristics are informality, community involvement and competitiveness with traditional legal forms.

According to anthropological theories, "moot" systems are positive in that they remove conflict administration from the exclusive management of the State. They encourage a consensual solution of the conflict generated by the offence, and they aim at the reconstruction of harmony within the whole community, thanks to the community itself. Due to an overall mistrust in traditional justice systems, these trends of thought offer resolution models which are parallel and alternative to the traditional trial system. Trials are considered as rite, formality and spectacular representation of justice. In these terms, the risk is traditional justice might be seen as a "game with no result", where one party wins and the other one loses. On the contrary, the programmes of reparative justice and penal mediation give the parties the power to mend the gap which has been created by the offence and, when they are successful, they allow for a "game with a positive result", where nobody loses: both parties are winners, thanks to their reciprocal concessions.

It is right to observe that the validity of these theories must be investigated: western society, differently from 'simple' ones, is a highly complex society. In this context, is it possible and feasible to import the mediation models analysed by anthropological science? (Mannozzi, Giustizia senza spada; p. 30 )

A second contribution to the development of reparative logics comes from the trends of thought referring to the theory of penal abolitionism.

Among these, the so-called critic criminology, according to which criminal forms are generated by the penal system itself or, more exactly, by the choices made by the ruling classes in matters of criminal policy. According to those who support the theory of labelling, instead, the deviance is not the effect of inner behaviours, but the consequence of the taking on of a role or negative label, given by the community itself.

Along with these quite radical doctrines, there are some more moderate ones that agree with the results of empiric researches although they recognise the genetic autonomy of criminal phenomena. According to these studies, penal sanctions completely lack the preventive aims proclaimed by traditional juridical culture and, on the contrary, they are by their own nature only pain-provoking instruments. The consequence of this theory is a lack of legitimization for the classic penal system and the subsequent collapse of the sanctioning system, which is based on the concept of punishment as the fundamental and unavoidable way to prevent crimes. It would be necessary to re-define the application area of penal law, so that it could include only really serious crimes. The other crimes would be dealt with different mechanisms for the resolution of conflicts, based on communicative and not repressive methods.

Without taking into account the actual feasibility of giving up punishment completely, which is definitely utopian and not concretely possible, abolitionist theories in their softer version have contributed to the promotion of "a justice that is psychologically closer" to people's needs and less foreign to the mechanisms of relationships among individuals which are typical of everyday life. This kind of justice also creates a greater sense of responsibility, and is therefore less stigmatizing.

Thirdly, an important impulse towards the discovery of this paradigm of justice has been given by the renewed interest in the role of the victim, provided both by that branch of criminology known as victimology, and by the diffusion of political movements supporting victims. These are extremely different cultural factors, which are both responsible for the importance given to people's needs and to their personal sphere.

Reparative justice is the first answer to a wider project for the protection of victims, also implying protecting safety measures. For those who wish to study this perspective more in detail, see S. Ciappi "Vittime, Scenari metropolitani e Globalizzazione" and "La costruzione del ghetto. Appunti di criminologia critica".