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

Objectives

A mediation formula is effective to the extent it can achieve the following objectives: meeting the stakeholders' expectations; reducing offender recidivism; helping victims to overcome traumas; compensating the damage suffered by the victim; reducing the workload of the judicial system by affording a viable alternative to criminal trials and imprisonment. More specifically, the relevant literature highlights four objectives that are typical of criminal mediation:

a. Justice-Related Objective. Mediation is a tool that allows reducing standard workload by channelling conflicts - in particular, minor/petty conflicts - towards informal networks managed by practitioners that can handle civil co-existence issues. From this standpoint, mediation is regarded as almost instrumental to law - that is to say, mediation restores the regulatory power of the law by humanizing the relationship between justice and citizens, who are compelled to follow formal patterns - such as those that belong with the world of law - if no alternative solutions are available to cope with the various types of conflict;

b. Societal Objective. The aim consists in this case in building up an accountability-oriented cultural stance to foster new values and models that can help overcome the victim-offender conflict and raise societal awareness of the issues related to handling maladjustment. The mediation-initiated process is made up of an effort to develop shared rules and values, the willingness to put oneself in another's shoes, and the attempt to probe deeper into and investigate individual experiences and behavioural patterns. All these components do not boil down simply to the objective of reconciling the two parties involved, i.e. victim and offender; in fact, they can be relied upon in order to build up a broader social policy strategy;

c. Victim-Related Objective. Victim receptiveness - which is at times thwarted from the start because of various hindrances (fear, grievance, ignorance, cultural background, etc.) - can be enhanced via an initiative that is proposed and managed by a third party. Mediation affords the opportunity to build up a new type of relationship that can meet the parties' demands by emphasizing the need for the victim to be contacted, informed, and supported throughout the judicial process rather than at the end of the line - starting from commission of the offence - so as to be enabled to understand and be informed;

d. Re-Educational Objective, vis-à-vis the offender. Mediation allows facilitating offender re-education. The offender is ultimately turned into one of the key actors in conflict management, given that mediation cannot work without "affirmative" action on the offender's side. Indeed, any attempt at mediation relies, in the first place, on the offender's consent and works subsequently via a "targeted" approach that is supposed to lead the offender to re-elaborate the conflict and the underlying grounds, acknowledge his/her liability, and feel the need to mitigate the suffering inflicted on the victim(s). Additionally, achieving offender accountability may also bring about a reduction in recidivism, i.e. the commission of same-type offences by the same offender.

However, the objectives pursued via mediation are not always quite clear-cut. In particular, major ambiguities have to do with a key issue - i.e., whether the objective to be achieved is focused on reparation of the concrete, psychological, and emotional damage suffered by the victim or else on affording the offender an opportunity to act positive in order to mitigate the damage caused to others, or else on preventing the re-occurrence of conduct that is prejudicial to others' rights and personal/pecuniary integrity. For instance, the experience gathered so far in our country shows that mediation can rarely manage to reduce the judicial workload to a meaningful extent. The Italian criminal mediation scenario features what is typical of the initial testing phase of any methodology; this is probably due, on the one hand, to the lack of legal and social culture and, on the other hand, to the widely held view whereby punishment of the offender is an effective societal safeguard - whilst the concept of victim-offender confrontation and interaction is as yet difficult to accept.

Furthermore, there are some misgivings as to both victim empowerment and offender "rehabilitation" objectives. It should be considered that mediation activities run the risk of being heavily impacted upon by the compulsory prosecution system that is in force in Italy, which means that no mediation enhancement policy can meet the basic requirement of reducing and expediting judicial proceedings. Nevertheless, it should be pointed out that criminal proceedings involving juveniles do afford some manoeuvring room to re-shape prosecution patterns, insofar as there are "niches" in which justice can be done without celebrating trials. This applies to several provisions in respect of pre-trial activities as set forth in sections 9, 27, and 28 of Presidential Decree no. 448/88 as well as in section 564 of the Criminal Procedure Code. In addition to these provisions that have to do with the phase prior to the rendering of a judicial decision on the case, mediation is also feasible in the enforcement phase - i.e. within the framework of the measures imposed alternatively to imprisonment, which can be applied ever since the hearing before the judge competent for pre-trial investigations. Mediation can also be implemented as part of the probation measures, given the desirability "... for the probationer to take steps as much as possible to benefit the victim of the offence he/she has committed..." (see Act no. 354/77, section 47(8) ). Finally, there is room for mediation in the enforcement phase, with particular regard to pecuniary penalties, if the penalties in question are to be converted by the judge into detention terms because of the offender's insolvency (see section 101 et seq. of Act no. 698/81). The circumstance that mediation is initiated by an institution that also performs enforcement and supervision activities can actually affect the negotiation and dispute settlement setting and thereby make the mediator's activity - aimed either at rehabilitation of the juvenile offender or at meeting victim requirements - ultimately useless.

The objective that can be best achieved via mediation is likely to be the "societal" one - for two main reasons. Firstly, mediation can allow a community to meet the collective demand for security that stems basically from repeated instances of misconduct, whilst the institutional solutions - given their complex initiation mechanisms, procedural hindrances, and uncertain outcome - are often unable to do so. The need for using tools other than criminal law in order to keep under control and handle conflicts and unlawful activities has been voiced by now from many quarters. A few scholars point out that "major as well as minor dangers of the globalised risk society can no longer be tackled by relying on the crutches provided by criminal proceedings. The small-step approach must be channelled towards other outlets. In our country, there is an unrelenting trend towards creating laws by the day without considering the flaws that are inherent in such laws...." (see, for additional information, F. Stella, Giustizia e modernità: la protezione dell'innocente e la tutela delle vittime, Milano 2003); conversely, others reiterate that "the criticisms levelled against modern criminal law are amply justified to the extent societal problems are increasingly solved with the help of criminal law tools - irrespective of the suitability of such tools. This accounts for the continued requests for drafting a well-defined programme of political and social preventive measures - this is the task we have to tackle nowadays, rather than pursuing ineffective criminalization policies. This is why the assumption that criminal law should give way in future to other approaches is well substantiated." (C. Roxin, Strafrecht, Munich 1997). All scholars agree on the need for the stepwise elimination of punishments, which are regarded as "an obsolete feature of our time", and on the need for other law sectors to take up the functions currently committed to criminal law. This is partly related to the widely held view that it is exactly the blanket use of criminal law that seriously threatens the overall reliability of criminal law as a tool for controlling crime (Luderseen, Naucke, Albrecht, Herzog, Prittwitz).

Secondly, mediation considers victims as partners, as the other entities involved in the offence-related events; accordingly, it involves the local community that is affected jointly with the victims exactly because the victims were affected by the offence. The victim only "belongs" with the local community, and the latter may not delegate or commit the victim (or another's) protection to any entity other than itself. Conversely, handling of the offender has ever remained "a State thing" (only consider the long history of rehabilitation), at least as long as offences have been regarded in the perspective of the relationship between offender and legal system, even in spite of the need to emphasize that the juvenile offender also continues to be a member of the local community and mirrors the problems and difficulties experienced by that community. These considerations partly account for the decision made in a few areas, e.g. in Trento, to attach mediation services to the local municipality. Thanks to the attention paid to the victim, an offence is no longer a "res inter alios" - indeed, it concerns the local community as well, which may no longer escape its direct accountability in affording responses to the commission of an offence.