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

Introduction: theoretical ambiguity of mediation

The current debate in Italy does not put any special emphasis on the theoretical clarification of mediation. Rather, one can perceive a basic ambiguity that appears to be a feature of all mediation-related theories. There are at least two cultural perspectives from which this issue is addressed. On the one hand, mediation is placed within the context of the juvenile criminal system as a supplementary tool; on the other hand, mediation is regarded conversely as a social and cultural project that is aimed at fostering social co-existence and peace. The latter approach considers mediation as unrelated to the interests of justice as such and makes it, once again, the focus of interest of society as a whole. Although the two perspectives in question are not mutually incompatible - indeed, one might argue that they both contribute to keeping up the discussion - they ultimately conceal the criticalities related to an issue that is as yet unsolved; it is an issue that concerns the relationships between two different (rather than alternative) tools that pertain to different stages and levels of a conflict situation.

It is unquestionable that mediation has not developed within the framework of the conventional legal models for handling and settling disputes; in fact, it was construed as a measure aimed at re-organising family relations and solving and/or mitigating conflicts in separation and divorce cases. In the family context, mediation proved a valuable alternative to the traditional judicial approach; its aim consists in enabling spouses who decide to terminate their marriage to directly achieve separation agreements and shape the re-organisation of their family so as to regulate their future life along with the life of their children.

The subsequent application of mediation to the criminal sector - or rather, to a context that is more broadly focused on victims' needs - entailed a loss in the initial methodological perspicuity of mediation. From this standpoint, the mediation techniques allow spouses, in a family context, to take on responsibility for deciding what is best, even amidst the emotional and organisational turmoil they are experiencing, without entrusting another (be it a judge or a legal counsel) with this task; conversely, mediation procedures have not been implemented in an equally adequate manner in the criminal sector, whereupon several issues have remained unsolved.

Given the meaning inherent in mediation, which is based on the parties' sharing their willingness and consent, mediation is bound to be in conflict with the coercive nature inherent in punishments. This accounts for the need, which is typical for mediation, to implement this approach outside the legal sector - indeed, only when removed from the judge's eyes will victim and offender be capable to find a way to get in touch, get rid of their respective roles, and get back their humanity. It is no chance that the definition of mediation - which is commonly received by the scientific community by now - refers to an informal process whereby victim and offender, under the mediator's guidance, discuss the criminal event and the effects it has produced on the victim's life and social relationships - which entails considering mediation as a private interaction requiring confidentiality and privacy.

However, its flexible nature - which results into its being at the crossroads between criminal law, ethics, and criminology - as well as the multifarious responses devised to cope with the multifarious features of a conflict have turned mediation into a very handy tool, but may also make it very inconvenient to use. The fragility of a mechanism relying on management of the balance to be struck in a context of "unbalanced human relationships" makes it necessary to determine the technical steps to be followed in the course of a mediation experience - as if to determine the components of a "mediation formula" that can be applied by practicioners in handling mediation activities and also work as a guarantee for the parties concerned (both victim and offender).