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

Penal mediation settings

Penal mediation activities have so far been applied only to the juvenile sector which is notoriously more sensitive to the offender's educational rehabilitation and appears therefore more open to flexible, personalized, rapid, unbiased, meaningful and non repressive responses to crime.

We shall not examine in details the Presidential Decree n° 448/88, the Italian legal framework for mediation; but we shall illustrate in depth the procedure of any conciliatory settlement between victim and juvenile offender and the elements characterizing its setting. Generally speaking, building a penal mediation setting requires several stages or levels which are more or less common to all agencies, save small differences.

- The first stage is an offer of mediation usually coming from the Judicial Authority, i.e. the Juvenile Court (State's Attorney or Judge) or the Juvenile Social Service. Mediation can also be requested by the offender or the victim and duly authorized by the judicial authority;

- a social worker receives the case from the judicial authority and assigns it to the mediation service; the court can also assign the case directly to the mediation service; both victim and offender have the possibility to apply directly to the service;

- the third stage is devoted to assess the feasibility of mediation. The mediator (or mediating team) examines the case-file and analyzes the request for mediation, after having gathered all available information. The initial assessment stage aims at identifying all evidence that can result in a positive outcome of mediation. If mediation is approved, the mediator contacts the parties by letter explaining the reasons and the methodology for the intervention; the mediation agent then calls the parties to schedule the first meeting (if a juvenile is either the victim or the offender his/her parents or tutor are also invited to attend). The mediation team is now able to formulate some working hypotheses according to the expectations and considerations emerged during the telephone conversation;

- preliminary interviews are conducted by two mediators who provide information and collect first impressions and life experiences from each party, as well as their consent to the actual mediation programme. These are individual meetings and take place in an institutional but neutral setting outside the penal system, in a welcoming and friendly atmosphere, so as to allow the victim to talk freely about the consequences of the offence suffered. As this stage aims at ascertaining the parties' thorough willingness to enter mediation, it is preferable to meet the offender first and test his/her intentions (for instance, to understand the reasons of his/her passive or not cooperative behaviour) and avoid to disappoint the victim's expectations if the latter has already consented mediation;

- the actual mediation meeting is attended by all involved parties with at least three independent and neutral mediators; more mediators assist parents and other participants; at the end of the meeting - which can last several hours - all participants get briefly together to discuss what happened and for the delicate phase of the "delivery" of the outcome of mediation to all those who share the responsibility for the parties directly involved (usually juveniles' parents and adult victims' relatives) to support them in the difficult task to actually commit themselves to the restorative behaviours unilaterally or mutually accepted;

- in case of a serious or very serious offence, mediation is often followed by a further stage in which an agreement on damage compensation is stipulated. Such further stage is attended by the parties' legal representatives as experts in the fair quantification of the damage and of the technical-juridical aspects of a compensation undertaking;

- mediators, preferably with the parties, draft a summary report of the outcome for the judicial authority; if mediation is followed by reparation, either symbolic or material, mediators follow the young offender till the complete fulfilment of such commitments.