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

Victims in Mediation

If construed as "healing justice" which does not aim at punishing, restorative justice is the key to finally open up the door leading to the re-appraisal of victims' needs - since victims have been marginalized for too long in our judicial systems. This de-valuation of the standing of the injured party can be accounted for by the concept of "unlawfulness" that has been developed over the centuries. In remote times, determining the nature of the offence and the response applying to such offence was left to the victim's and the victim's family's discretion, since there was no higher authority in charge of enforcing laws and punishing offenders. Once States were created and collective interests took shape, illicit actions were turned into offences against society as a whole, whereby the victim was left in the background.

A restorative justice system can translate into several possible models and components.

Among those focused on victim-offender reconciliation programmes, there is little doubt that mediation plays a leading role. It should be pointed out that mediation is applicable to multifarious areas - from law (criminal, civil, administrative) up to societal issues (including both school-related mediation and family mediation). A common denominator to all these models is - in terms of methodology - the achievement of a peaceful, informal settlement of the conflict via a meeting between the parties that should take place in a safe, adequately primed location with a view to the parties' reconciliation - under the guidance of an impartial, skilled third party.

In mediation programmes, the illicit and/or unfair conduct is regarded as an inter-personal conflict and assessed in order to cope with it constructively, by empowering the parties to handle the conflict directly. Offender and victim, if adequately supported, become the lead actors. They are no longer on-lookers of justice that is done from above by others. For instance, a trial is justice turned into show - it is an instance of the exercise of the State's jurisdiction vis-à-vis the community as a whole. Mediation is averse to the symbolic rituality and formal rigidity of trials. Rather than being surreptitiously appropriated by the State which institutes a judicial proceeding, the conflict is finally handed back to the parties via reconciliation-reparation initiatives.

From a merely victimological standpoint, mediation is an important occasion. It is when one can finally confront the offender and try to understand why he or she behaved the way he or she did. It is when one can give vent to one's anger and suffering against the person who unjustly caused such suffering. It is a time for reparation - whether symbolically or not. If one takes account of all the cases in which victim and offender meet, one can better understand the key role and the huge potential of dialogue. A considerable portion of the conflicts arising in schools, families and between neighbours are due to the utter unwillingness or inability to communicate.

In the offender's perspective, mediation is where he or she can meet and recognise an individual as the victim. Indeed, it is often the case that the offender has no appreciation of the victim, who is actually seen as an impersonal entity - in particular if the offence at issue has no relational components. The mediator's task will then consist in modifying the depersonalising view of the victim that is held by the offender. If the offender does not manage to recognise the victim's suffering, and therefore to feel responsible, any offer of reparation becomes meaningless because the social link that was broken by the unlawful conduct cannot be re-created.

It should be pointed out that the mutual recognition of "victim" and "offender" does not entail the risk that these roles become crystallized as such - indeed, this is a risk mediators are keen to avert. Recognition is necessary, though not sufficient - it is the fundamental precondition to, in the first place, retrace the actual facts and, secondly, ensure that both parties' needs are satisfied. By expressing their suffering and anger, the injured person - relying on their standing and prerogatives - can finally manage to get rid of this status. By recognising the suffering caused and remedying the harm, the offender can, in turn, get rid of the stigma arising out of the law and avoid future stigmatization - which is more likely to lead him or her towards repeated deviations.

Empirical studies have shown that mediation allows achieving not only actual satisfaction on the victim's side, but also a decrease in the risk of recidivism by enhancing the offender's responsible behaviour.

Additionally, the beneficial effects of criminal mediation programmes are not limited to the short-term appeasement of the parties concerned. They entail long-term consequences as well, since they can impact favourably also in terms of crime prevention - i.e. they allow doing away with certain criminogenic factors. Restorative justice actually envisages a set of actions that would appear to impact exactly on the so-called neutralization techniques that are typical of deviance - according to the theory developed by Sykes and Matza. The latter have analysed deviance as a type of criminal behaviour rather than the outcome of underlying variables of a genetic, environmental, or psychological nature. Based on this theory, deviance is due to five neutralization techniques:

1. denying one's responsibility (the deviant believes he or she was led to commit the offence by external factors);

2. minimizing the harm caused (the deviant downplays the immoral element of the offence on the ground that actions can be illicit without being immoral as well);

3. negating the victim (the offender tends not to recognise that certain categories of individual can be victims, as he or she believes they deserve being injured - e.g. migrants, homosexuals, the wealthy);

4. condemning those who condemn (magistrates and the police are hypocrites and corrupts); and

5. invoking superior ideals to justify one's conduct (not squealing on a friend that has problems with the police is more important as a rule than the legal obligation to report a crime). If one carefully considers the behavioural strategies described by the two scholars, one can easily appreciate that the basic approaches of restorative justice impact exactly on at least the first three neutralization techniques in question.