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

Final considerations

Looking at the variety of systems we have here mentioned, it is possible to understand the extreme flexibility of the reparative paradigm.

However, this would not expect to take on the role of principal and central system in the "Penal justice planet". In fact, according to today's prevailing doctrines, the connection with the traditional penal apparatus - based on the legal authority's control and the application of punishment ? would still be necessary. It is hard to think that the function of main administrator of justice could be taken from the State. The fact that conflict management is left to the legal authority is a guarantee of equality, independence and autonomy for the opposing interests involved, at least on a theoretical level. This allows to leave out the risk of arbitrary choices, which are likely within the private management of the conflict. We must not forget, in fact, that all the fundamental rights of a person are being dealt with in the penal sector. The laws and the State not only represent the expression of the power of the stronger party; but they also ensure protection for the weaker party. The protection of the weaker party is definitely one of the "illusions" of every legal theory; but it is nevertheless one of the "necessary illusions".

Going beyond theoretical data, an obstacle which might be difficult to overcome for the application of extra-judiciary reparative justice systems within penal matters is the principle of compulsoriness of penal actions. Consequently, such measures must be included in the classical legal system both in terms of legal control and for the regulation of activation circuits, and during the subsequent stage of checking its effects and legally recognizing them. According to Bonafé-Schimtt and Commaille, we need to overcome the theoretical falseness of those theories proclaiming the inevitable opposition between State conflict regulation systems (which are based on laws and formality) on one hand, and the decentralized and informal systems (which are based on agreement) on the other hand. It is wrong to consider the critics to the traditional system as a contestation of "imposed law", in favour of the opposing concept of "negotiated law". It would be more logical and useful, and without any doubt closer to the complexity of modern societies, to consider the possibility to start new forms of "negotiated order". Within this "negotiated order", State laws, legal regulations and penal sanctions are not left aside, but become a flexible element including also reconciliation-reparative techniques.

The unavoidable combination of restorative justice with the consolidated mechanisms of traditional justice ? at least within the merely penal sector ? does not exclude that in the future the former may become the 'preferential' route for the solution of certain conflicts (G. Mannozzi).

The innovative and dynamic meaning of reparative justice lies not only in its capability to decongest and deflate the modern penal system, nor in its capacity to remove and take the place of the traditional retributive and re-educational models. Its merit lies in its being founded on a different approach to the conflict, which is considered and solved in communicative terms and not only merely in repressive terms.

In the legal culture based on the Roman model, private contractual negotiation is widely spread. On the contrary, personal treatment of public order is quite limited. Nevertheless, "in the modern application of our legal systems, these two models are increasingly in touch". The diffusion of mediation in the penal sector proves this is happening. The reasons for this can be found in the transformation of social consciences and individual interpersonal relationships, as people are willing to see the application of a "proximity" justice, which is closer to their needs and allowing for a greater active involvement on their side.

As far as mediation is concerned (as this is here considered the principal system for reparative justice), the literature of this sector applies a different perspective which is more radical but probably closer to the intrinsic spirit and meaning of this system. From this point of view, mediation is not a simple additional model to include in the planet of penal justice; but a real social and cultural project, independent of traditional justice. According to this theory, mediation is a new outlook: a real revolution of thought (Morineau J., Lo spirito della mediazione.). Mediation, just like traditional justice, aims at restoring order, peace and harmony; but its means are different. Differently from the latter, it does not refuse inner disorder. On the contrary, it gives expression to it and welcomes it while trying to transform it and to prevent further episodes of violence. Only through the expression of chaos it is possible to free oneself from evil and reach katharsis. On the contrary, traditional justice fears inner disorder because it lacks the means to face it. Differently from the process which tries to crystallize the past in its search for the "res judicata", mediation moves from the understanding of the previous fact in order to look into the future. It aims at solving the conflict through the transformation of mutual consideration. There are no longer winners and losers; no good and evil. According to this current of thought, the Western world wishes for 'Justice' as it has been conceived for centuries, because it is convinced that only the judge ? an external subject endowed with superior knowledge ? possesses the means and skills to solve conflicts. It has no trust in the people's capacity to manage crisis autonomously. In the traditional system, the cathartic effect (from katharsis: action of expelling katharma ?the evil ? through which you can reach purification) is left to the judge's decision and to the application of the sanction. These are the instruments that can free society from chaos. This perspective offers a complete overturning of the traditional relationship between individuals and institutions. In fact, Le Roy states that: "mediation questions our academic knowledge and the established order, which has been the basis for the functioning of society".