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

Conciliation and Mediation: Different Roles and Areas of Activity

To probe deeper into the criticalities related to the mediation process, it might be interesting to dwell on the differences and similarities applying to the concepts of "mediation" and "conciliation". This is all the more relevant if one considers that in the Italian context the two words [i.e. the Italian translations for the two words, Translator's Note] are mostly used interchangeably with particular regard to the criminal sector - partly on account of the absence of a definition of mediation such as to determine its conceptual contents and operational scope (see considerations made in the initial paragraphs of this teaching unit).

a. Conciliation v. Mediation: Two different words for the same concept?

In Italian, mediation and conciliation are semantically quite close. "Conciliazione" is the word used to translate "mediation", since "mediazione" reminds Italian speakers of "intermediation" - which is something totally different. "Conciliation" and "Conciliazione" are usually considered synonymous with "mediation", whilst the latter is mostly translated as "conciliazione" in Italian. At international level, conciliation is used to refer generally to any activity that does not rely on a judicial decision. However, it should be pointed out that the wording used in Italian varies with the context - i.e. whilst [It: mediazione] is used appropriately to refer to mediation in family, environmental and/or international matters, in other cases [It: conciliazione] is used to refer, for instance, to the attempt to settle a labour dispute. Apart from this ambiguous usage, which is related to the contact points between these two alternative techniques for dispute resolution, there are actually several differences between the underlying concepts.

Whilst conciliation and other negotiation techniques are pragmatically focused on the two parties that are seeking to optimise the respective results, also in pecuniary terms, mediation - at least looking at the meaning it has ultimately taken on - has expanded its scope to become a process generating and re-generating social links. Even when it fails to generate or re-generate social links and connections, the application of mediation results into re-elaborating the conflict and thereby brings about growth and transformation.

Mediation in criminal matters was clearly defined by Recommendation No. R(99)19 of the Council of Europe as "any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator)." The parties' consent, the commission of an offence, and the presence of an impartial mediator are considered as fundamental preconditions for the mediation process. As regards the Italian legal system, it should be clarified that "mediazione" (mediation) is never mentioned in legislation, whilst reference is made to "conciliazione" also in very recent laws such as the one regulating justices of the peace.

b. Contact Points

The issues related to definition might mirror several contact points between mediation and conciliation.

b.1. They are both alternative conflict resolution techniques. Mediation and conciliation are expressions of a cultural stance that considers conflicts between individuals "differently" - in particular if the individuals in question are children - and "aims at solving" these conflicts by using consent-based, accountability-enhancing solutions alongside conventional judicial proceedings - with the help of a third party that works according to impartial as well informal standards. They should be placed in the broader context of alternative dispute resolution (ADR) techniques.

b.2. They both rely on a three-party framework. Mediation and conciliation involve two main parties, i.e. the victim that suffered the damage and the offender that caused such damage, plus an intermediate third party that handles the whole process.

b.3. They are based on the same operational logic. Both techniques rely on informal procedures requiring the parties' consent and participation. Additionally, the disputes that are the subject of mediation and conciliation processes are resolved by the parties, who play an active role: they should always be present in person, although they may be assisted by a professional. Finally, no force and/or power dynamics are allowed for, and consent substitutes for force. The logic of collaboration between the parties leaves no room for power and force.

c. Differences

Still, there are major differences between mediation and conciliation both in conceptual and in operational terms.

c.1. Mediator v. conciliator (or negotiator): Are they fully superimposable?

c.1.1.The mediator. In order to achieve the ultimate objective of mediation, i.e. affording the parties a new opportunity for seeing each other in a different perspective and discovering a new language to talk and attempt at buiding up their relationship via new rules - which can help them cope with the effects produced by the conflict and the difficult situation they are going through (Ceretti 2001 - mediators must be capable to handle the communication between the parties and help them manage the expression of their feelings and emotions. The 1999 Recommendation specifies that "mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities." Additionally, they "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). Hence,

- mediation must be implemented by a third party vested with no powers, in order for the conflict to be overcome in reality by the persons involved therein, i.e. via a bottom-up approach (this is what is termed "privatisation" of the decision on the conflict);

- the talks between mediators and mediation parties are based on a communicative approach that is not limited to the search for a solution to be negotiated freely (which is the case with conciliation); in fact, the approach in question goes as far as to attempt to restore a social link/relationship;

- it would go against the very grain of mediation to imagine that mediation may be implemented by the magistrate in charge of deciding on the case, i.e. by the person charged with issuing a decision on the State's behalf - since this decision is bound to be authoritarian in nature and mirrors a top-down approach. Indeed, it is quite difficult for a magistrate to create the conditions that are appropriate to the holding of a mediation meeting - by overcoming the ritualism of judicial hearings and getting rid of a coded language to also become skilled in handling the suffering of the parties involved in the conflict.

c.1.2. The conciliator or negotiator. Conciliation - whether in court or out-of-court - can be defined as the agreement whereby the parties decide to settle a dispute, usually with the help of a third party. The conciliator supports the parties by guiding their negotiations and orienting them towards mutually satisfactory agreements. Hence,

- the negotiator is an impartial, independent entity as well, being skilled in the matter that is disputed as well as in negotiation and mediation techniques. The negotiator's task consists in getting the parties to communicate with each other and bring up their actual interests, which often fail to be perceived; by so doing, the negotiator contributes to the victory of collaboration over conflict in accordance with a modern, more co-operative vision of the relationships between the main parties in a conflict.

d. The Outcome of the Two Processes: Agreement in conciliation v. re-elaboration of communication in mediation.

Taking account of the ultimate objective of mediation, a mediator would not aim at the resolution of a conflict - rather, the mediator tries to mitigate the undesirable effects of a serious conflict, or else to restore a dialogue between individuals that can acknowledge their respective differences without qualms, so as to allow them to get back their active, responsible decision-making power. The parties in the dispute should be enabled to shift from a condition in which they are prey to their respective emotional responses to a condition in which they take action by working out and proposing a constructive project to regulate the conflict by agreement.

Accordingly, forgiveness and/or compensation for the damage caused (in terms of a formal legal obligation) are actually irrelevant in mediation - in any case, they play a secondary role and are in no way preconditions for the successful outcome of the mediation process. The parties' mutual acknowledgment can be perceived; at the very least, it can be perceived that they achieve a significantly different view of one another, which is often mirrored by the commitment to afford reparation (whether symbolically or materially) in a manner that is satisfactory to both parties (Mazzucato 2001).

Whilst mediation can be regarded as successful if the two main parties to the conflict manage to go beyond the specific situation - in which they are fossilized in their respective roles as "victim" and "offender" - and acknowledge their respective emotions and suffering, conciliation is successful if the optimal solution can be found for the problem arising from the conflict and the parties are led to stipulate an agreement that is beneficial to both.

e. The National Context

Taking account of the compulsory prosecution system that is in force in Italy, 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 the following provisions:

- section 9 of Presidential Decree no. 448/88, whereby information that can be helpful in assessing the juvenile offender's personal, family, societal and environmental conditions and resources should be gathered in the course of pre-trial investigations;

- section 27 of Presidential Decree no. 448/88, whereby a decision of no case to answer, and thereby to terminate prosecution because the facts do not amount to a criminal offence, may be rendered by the judge after hearing the juvenile offender, the person exercising parental authority, and the victim;

- section 28 of Presidential Decree no. 448/88, whereby the trial may be suspended and the juvenile offender put on probation via a judicial order, which may also lay down remedial measures to also foster conciliation between victim and offender. Additionally, if the judge considers that probation was successful, extinguishment of the offence shall be declared by a judicial decision;

- section 564 of the Criminal Procedure Code, which affords additional room to initiate a mediation process as it empowers the public prosecutor to attempt conciliation between the parties.

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 and can be implemented as part of the probation measures alternative to custodial penalties, 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 custodial sentences because of the offender's insolvency (see section 101 et seq. of Act no. 698/81).

Regarding conciliation, as well as the conciliation measures initiated by the competent judge - reference can be made here to the conciliation attempt made by the judge in disputes on parental authority, pursuant to section 337 of the Civil Code, as well as to the conciliation attempt made by the judge in marriage dissolution proceedings - other legislative measures recently tried to enhance this judicial prerogative:

- attempting conciliation was set out as mandatory in all civil litigation cases (sections 183 to 185 of the Civil Procedure Code;

- public prosecutors are required to attempt conciliation in offences to be prosecuted upon the victim's complaint (section 564 of the Criminal Procedure Code);

- judges deciding on juvenile cases may issue instructions to foster reconciliation between the juvenile offender and the victim (section 28 of the criminal procedural rules applying to juveniles) within the framework of probation;

- justices of the peace were created.

There are two additional areas where, because of cultural and social pressure, conciliation as a judicial measure is being developed. On the one hand, the conciliation attempt made by the judge presiding over the competent court in respect of the spouses petitioning for separation and/or divorce is taking on increased importance - indeed, an issue arising from this development is how to ensure the assistance of defence counsel during this phase; on the other hand, the investigations concerning the juvenile offender's personality have been extended to include the evaluation of actual restorative measures taken by the said offender (see section 9 of the criminal procedural rules applying to juveniles), i.e. even apart from probation.