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Criminal Mediation Mechanisms

Practically speaking, one should answer a few basic questions. How can a victim be involved in practice in the criminal mediation process? How does referral take place? In short, what are the actual steps a victim is to go through in a typical mediation programme?

The current regulatory framework as applying to criminal mediation is rather flawed. Room for manoeuvring is provided by sections 9, 27, and 28 of Presidential Decree no. 448/1988; section 555 of the Criminal Procedure Code (which repealed section 564 of the Criminal Procedure Code); and, lastly, section 29 of legislative decree no. 274 dated 28 August 2000, which regulated the jurisdiction of justices of the peace in criminal matters.

Unlike other European and non-European countries, practical experiences in mediation are limited to certain specific areas of Italy - the most significant among them being those in Turin, Bari, Milan, Trento, Venice, Rome, Catanzaro, Salerno and Cagliari.

Given the shortcomings of the regulatory framework and the multifarious methods deployed, it is difficult to outline the typical procedural steps a victim is expected to go through after being enrolled in a mediation programme.

For the sake of convenience, we considered it appropriate to take the model developed in Milan as an example, following the description provided by Cerretti. As a rule, the mediation process is made up of five basic steps: referral, first contact, preliminary interviews, face-to-face meeting, and conclusion.

Referral

Prior to referring a case to the Mediation Bureau, the judicial authority is to request consent from both the minor and his/her parents; where feasible - although this is not mandatory - the victim's consent should also be obtained. Otherwise the victim is informed thereafter by the Mediation Bureau. As regards the offender, he/she will have to acknowledge his/her liability for the facts at issue prior to giving his/her consent. This is an informal type of acknowledgment and has no technical nature, since criminal liability can only be established with the final judgment on the case.

First Contact

After starting a case, the mediator sends out letters to the offender, the offender's parents, the victim, and the counsel for the two parties. The letters contain an invitation to take part in the preliminary interviews as well as a brief description of mediation activities. This is followed by telephone calls. It is during this preliminary phase that the difficulties typically related to mediation begin to take shape; the mediators should tackle such difficulties by relying on all their skills and the techniques they have learnt. The victim may be either a natural or a legal person; in the latter case, it might be a major corporation - e.g. a large trade center, or a transportation company, or public or private companies that are usually the victims of offences against property and/or vandalism. The entities in question may have little or no interest in taking part in mediation activities, for instance if the damage is covered by an insurance policy. Even where the victim is a natural person, there may be several reasons for her refusal to be involved in mediation activities - e.g. the need to get past a painful experience, fear of meeting the victim, total indifference to the offender as a person, distrust of institutions and their methods. This is the subject matter a mediator should tackle in order to do away with all the difficulties and biased views that can hinder the implementation of a reparation/reconciliation programme. The role to be played by the legal counsel should not be underestimated. They are to be regarded as the guarantors and custodians of rights and represent the leading reference points for the minor offender, the offender's parents, and the victim. Any steps taken by the juvenile court, welfare authorities and/or mediation bureaus are assessed by the legal counsel. The invitation to visit the mediation bureaus is also submitted preliminarily to the counsel's attention in order to clarify the relevant contents, the underlying mechanisms, and the possible consequences. From this standpoint, the legal counsel could turn into a useful vehicle to ensure the successful start of a mediation activity. However, a precondition to achieve this target is informing the counsel beforehand - preparing them adequately and involving them in the criminal justice experiment so as to allow them to be in a position to reply to any questions asked by their clients. Additionally, it will be necessary to clarify to what extent and in what contexts they may interact with the judicial operators participating in the mediation programme. In short, a "fine-tuning activity" is required to make real the dialogue between the individual entities working with juveniles.

Preliminary Interviews

Having accepted the invitation, victim and offender are summoned separately to the preliminary interviews; they are accompanied by the respective parents and/or legal counsel. During the interview, the victim is urged to narrate what happened, express their feelings as to the events and give vent to their mood. This is the phase in which a mediator should make use of all his/her skills as an empathic listener. Only at the end of the interview(s) will it be possible to determine whether there is consent to meeting the counterpart. This is a free, informed and revocable type of consent. During this phase, the mediator should strive to pinpoint a possible instrumental and/or opportunistic stance of either party vis-à-vis mediation - i.e. whether the offender is only interested in getting rid expeditiously of the criminal proceeding and dodging the risk of conviction, and whether the victim is only keen to achieve more substantial pecuniary compensation. Starting from the assumption that there is no such thing as full, unconditional consent, the mediator should try and limit the risks related to partiality, remedy any inequalities between the parties, and - above all - be brave enough to go without the mediation activity itself if he or she establishes that no meaningful results can be achieved.

Face-to-Face Meeting

The face-to-face meeting between victim and offender starts with a preliminary step. The mediators (there are three of them in Milan) clarify the terms applying to mediation: it is no trial and they are no judges; the meeting is meant as a forum to communicate and narrate their respective experiences; there are no rules except for those of communication and mutual respect. After this preliminary step, the parties are called upon to narrate the respective experiences and listen to one another, whilst the mediators attend in respectful silence. Upon conclusion of the narrations, one of the mediators recaps the narrated events in a summary, non-committal manner with a view to the next topical component of mediation - i.e. the crisis.

Conclusions

What can the outcome of mediation be? Mediation can lead to positive, negative, or uncertain results. The conclusion is notified to the judicial authority via a very concise report. If the outcome is favourable, the court may issue a verdict of no case to answer (section 27 of Presidential decree no. 448/1998) or else pardon the offender. But when can one argue that mediation was successful? On the whole, mediation can be considered successful if the mediators have been able to clearly appreciate that the parties:

1. have freely expressed their respective feelings;

2. have achieved mutual recognition by modifying or clarifying the views they held of one another;

3. have modified their communication patterns; and

4. have decided ultimately to effect symbolic and/or material reparation.