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

Different objectives, different procedures

The need for the objective pursued by mediation to be as clear-cut as possible arises exactly out of the principle that underlies the very concept of mediation - namely, enhancing empowerment of the participating entities, i.e. victim and offender. Indeed, only by clearly determining its objective can a process be started whereby autonomy and accountability should be enhanced to enable the juvenile offenders to become aware of the import of their actions, re-elaborate the conflict and the underlying reasons, acknowledge their own liability and feel the need to remedy the suffering caused to the victims; victims in turn should be enabled to recommence living their own lives by overcoming feelings of revenge, grievance, distrust and fear and have their demands and needs ultimately taken into account, whilst there is no room for the consideration of such needs in the criminal law framework.

However, achieving the objective of mediation is dependent upon the adoption of ad-hoc procedures, i.e. procedures that should be consistent with the objective pursued by mediation and compliant with certain ethics standards to guarantee both parties to the mediation process - that is, both victim and offender should be informed beforehand as to the objective that is pursued via mediation, because their consent and/or acceptance to participate will have to be based on the said objective. More specifically, no mediation process can be implemented in the absence of the following:

a. Unambiguous Communication

The parties must be informed both about the features of the mediation process and, above all, about the consequences possibly related to the outcome of mediation. In this regard, it is necessary to remind them that all the statements made during the mediation process must be kept confidential. However, informing also means that the parties should be made aware of their rights both before and after mediation, and if they are juveniles they are entitled to be assisted by a parent (see article 12 of the Basic Principles on Reparative Justice Programs in Criminal Matters as approved by ECOSOC following the UN Assembly of April 2000 in Vienna.)

b. Consent by the Parties

One of the key features of mediation in criminal matters, at least in a formal perspective, consists in the parties' free consent to participate (see article 1 of Recommendation No. R(99)19 on mediation in penal matters as adopted by the Council of Europe on 15 September 1999). "Mediation in penal matters should only take place if the parties freely consent." This marks the distinction of mediation compared to conventional proceedings in criminal justice. Indeed, it is not mandatory to participate or continue participating in the mediation process. The parties are free to withdraw their consent at any time (article 1 of the Recommendation). The general principle whereby participation is based on the parties' freely given consent relies on the assumption that participants should be in a position to give their informed consent without any constraints whatsoever. The parties should be fully informed of their rights, the nature of the mediation process and the possible consequences of their decisions (article 10 of the Recommendation) and they should not be induced by unfair means to accept mediation (article 11 of the Recommendation). This is why, for instance, mediation should not proceed if any of the main parties involved is not capable of understanding the meaning of the process (article 13 of the Recommendation).

c. Presence of a Mediator

Mediators should be capable to manage the communications between the parties and help them in handling the expression of their feelings and emotions. There should be "standards of competence" and "procedures for the selection, training and assessment of mediators". According to the Recommendation, "mediators should be recruited from all sectors of society and should generally possess good understanding of local cultures and communities." Mediators "should receive initial training before taking up mediation duties as well as in-service training." Training should aim at "providing for a high level of competence, taking into account conflict resolution skills, the specific requirements of working with victims and offenders, and basic knowledge of the criminal justice system." Training should allow not only learning mediation and communication techniques, but also becoming suitably familiar with the criminal justice system and the procedural and substantive effects produced by restorative justice programmes (article 24 of the Recommendation).