Existing Norms: towards worldwide common principles

The culture of mediation is pervasive. Even if it is universally clear that accord is preferable to conflict, having turned this mode of thinking into a shared system of convictions is proving unexpectedly effective. Are we dealing with an obviousness with a new name, an epoch-making change or simply an illusion?
Clearly, not all governments have responded in similar fashion to the growing phenomenon of mediation. Varying traditions, policies and contingencies account for this lack of legislative uniformity. There are legal systems that do not address such matters, others that have promoted legislation in areas affecting the family, the penal system, the juvenile ambit, and others that address all these ambits.
World Mediation Forum III constituted a golden opportunity to become familiar with the legislative status of various countries, so that ideas may progressively spread and be shared. It was a matter of learning what others do and do not do, in order to enable governments to align themselves in light of a future globality of common perspectives.
The trial system, both civil and penal, was devised as a way of preventing people from enacting and exacting justice on their own. It is the least imperfect conflict-resolving system that we have been able to come up with. Unfortunately, however, necessarily ritualized trial management has itself become the object of conflict. People do not meet, but clash, in order to assert their rights. Usually, it is a "winner-take-all" situation.

In the course of the World Mediation Forum Italia 2000, and after having examined the laws and bills of the different countries attending the Convention and participating in its activities, I attempted to highlight some common themes which could be adopted by the juridical orders of said countries as practical legislative guidelines.

Mediation is a mental attitude which sees as resolvable every human conflict via agreement between the parties; agreement – when the parties are unable to reach it by themselves – can be reached via intervention by a third-party expert: the mediator, whose action will consist in resolving the controversy independently of the judge; the juridical orders of various countries have to commit themselves to instilling said mentality in their respective citizenry and to promoting the training of mediators; judicial systems – if not impeded by the very nature of the trial – have to set as their primary objective the consensual resolution of conflicts, since the trial process can, by its very nature, aggravate the litigation for which it was instituted; only when it appears impossible to reach these objectives, due to the refusal of one of the parties to participate in mediation, or because of the latter’s failure, a non-consensual (i.e., judicial) decision will be made; in the criminal field, before establishing punishing for the guilty party, it is necessary to strive – where possible – to help both the victim and the offender to reach an agreement, even via reparation (either of a patrimonial or non-patrimonial nature) offered by the guilty party; in the family ambit, separation and divorce, if not so requested via an agreement accepted by both spouses, and reasonably formulated, the judge solicites expert mediation to the end of limiting emotional, existential and patrimonial damages to the spouses, and especially to any children they may have; what surfaces during the mediation process cannot be utilized as evidence in a trial whose subject is conflict submitted to mediation.

Guglielmo Gulotta
Chairperson of the Symposium
Laws in course: towards common world wide principles