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

Process Stages

The relevant literature mostly states what happens during mediation rather than what mediation actually consists in. Mediation practices are different in the different legal systems, the differences being mainly related to the mechanisms for performing mediation and the inclusion of entities other than victim and offender. However, a general mediation model can be outlined, made up of four separate stages:

I. Referral of the Case:

This is the stage when it is decided whether the conflict can be the subject of mediation activities, after gathering general information on its dynamics and the context in which it developed.

II. Preparation of Mediation:

This is usually done via separate interviews with the parties, whereby the mediator explains the meaning and legal consequences of mediation. More specifically:

- the programme is presented;

- the version of the facts provided by both parties is listened to;

- the role played by the mediator and the individual participants is clarified along with the benefits resulting from consent to mediation;

- the consent to meet the other party is obtained;

- agreements are made as to the meeting of all the parties.

III. Performance of Mediation:

This may also take place via several meetings between the mediator and both parties; if the outcome is favourable, it leads up to an agreement, undersigned by all the parties, as to the contents of reparation.

IV. Follow-up:

This is the stage when it is assessed whether the reparative conduct is compliant with the reparation agreement undersigned by the parties; additionally, the parties' satisfaction is assessed via interviews and evaluation forms.

This is the framework applying to the mediation process. However, there are several issues that touch upon the four stages mentioned above; they require solutions, especially in order to build up a mediation technique - or, as said in the above paragraphs, an operational formula for mediation - as well as to set out its effects and regulate its relationships with conventional procedural rules.

Without prejudice to the fundamental requirements of mediation - i.e. setting out an objective, obtaining the parties' consent to participate in the mediation process including the willingness of victim and offender to meet, presence of a third-party mediator implementing the mediation process in accordance with stringent methodological rules - there are several issues as yet unsolved in respect of the mediation process. A few such criticalities concern, for instance, the identification of the addressees of mediation activities - i.e. whether offenders and victims should be "selected" and based on what criteria. Additionally, it would be appropriate to clarify whether the mediation proposal may be put forward in respect of all the offences or only apply to minor offences, which are however considered to be "socially relevant"; or whether mediation may take place in the presence of especially difficult or complex family and/or societal circumstances.

Still, prior to highlighting criticalities that are somehow "external" to the mediation process, it would be important to dwell on certain technicalities that are inherent in the mediation process. For instance, we said that the two individuals involved in the conflict, i.e. victim and offender, may be interested in meeting to communicate, explain, listen and re-elaborate the event including all the emotional and personal features that can be voiced freely in a non-court environment - which cannot but take place after a given lapse of time from the event/offence. However, there is little doubt that the two parties are driven by widely different motives and act on the basis of conflicting interests. One should not fail to consider that implementation and usefulness of mediation decrease with the time elapsed since commission of the offence; it is obvious that the more the process has gone on, the more the parties' positions become crystallized and it is difficult for a third party to foster their interaction by going against the fossilization brought about by time. Having said this, it is unquestionable that the offender is more likely to act on material grounds in joining a mediation programme, since accepting the mediation process may entail different enforcement arrangements as for his/her punishment - e.g. alternative measures to imprisonment, or a different duration of the sentence. The story is totally different for the victim: obtaining the victim's consent, leading the victim to meet her offender, whilst the conflict has already taken shape and the key event dates back to a more or less distant past, is considered to be the most difficult as well as complex step in the process.

Special importance should be attached in this regard not only to determining who is to initiate the mediation process, but also how such process is to be initiated.

In Italy, the mediation process may be initiated by the Public Prosecutor or else requested by welfare services (USSM - Juveniles Justice Welfare Offices) and justices of the peace. Three conditions should be fulfilled in order for the procedure to start: the juvenile offender must give his free, informed consent; the victim must give her free, informed consent; the juvenile offender must acknowledge liability for the offence. The mediation process would thereby be initiated in respect of victim and offender, i.e. the two entities that are also addressed by criminal prosecution. However, given that the interaction/communication between victim and offender takes place via a meeting that is aimed at re-considering what happened and why it happened and preventing what happened from occurring again, the two parties that joined the mediation process in their respective capacities, i.e. as victim and offender, ultimately are deprived of their roles. From this standpoint, mediation activities cannot but be kept separate from judicial activities, which conversely tend to fossilize the parties according to roles pre-defined and regulated by statutory rules.

How can one reconcile this inconsistency that is seemingly a feature of mediation in criminal matters?

An important as well as a significant role - in particular because the mediation process involves a juvenile offender - might be played by welfare services; although the latter are an integral part of the criminal justice system, they are also a branch of the civil society and as such - if the victim is known - might contact the victim, prepare the victim for agreeing to meet her offender, and inform her on the contents, mechanisms and objectives of mediation. The same applies to the offender; for instance, it may happen that welfare operators determine that mediation is a feasible option by having regard to the offender's personality and the offence in question, and thereby provide all the information required to bring about informed consent. Whilst this type of mediation remains mediation in criminal matters, at least formally, since the offences it addresses are criminalized under the criminal code, it is actually closer to mediation in family matters from a substantive viewpoint - as it is aimed at affording "room" for the juvenile offenders and, more generally, ensuring the harmonious development of their personality.

Like with mediation in family matters, social stigma would thereby be mitigated - such stigma applying not only to maladjusted juveniles, but also to the children of separated and/or divorced parents especially if they happen to behave unsuitably or fail to keep up with educational standards - and the involvement of the community as a whole would be fostered - e.g. by making available premises where to set up mediation centres.