B5038 - NEGOZIAZIONE E MEDIAZIONE

Learning outcomes

The course aims at providing the students with both theoretical and practical knowledge of the main conflict management methods based on the parties' negotiating autonomy, namely negotiation and mediation, meant to offer a protection different from, but also complementary to the civil and arbitral trial. These conflict management methods have progressively gained attention and diffusion at the international, European, and national regulatory levels. However, the study of their methodology, strategies, and negotiation techniques by lawyers (and now, in light of the recent civil procedure reform, also by judges) has only recently become the subject of specific evaluation and elaboration in our legal system.

The course is developed along two different but interconnected lines: the examination of international, European, and national regulations, as well as the investigation of the theoretical elements of negotiation and mediation, will be complemented by a workshop aimed at giving students the skills and abilities to understand the activities of negotiation and mediation. In this dimension, the student will learn to identify the main obstacles encountered during negotiation and mediation and to know the strategies to overcome them, as well as to acquire the technical and conceptual tools related to legal negotiation and mediation. At the end of the course, the student, in addition to having acquired the legal knowledge of the institutions of negotiation and mediation (including in the family context), will master the essential negotiation and mediation techniques and will thus be able to understand whether the negotiation can constitute an efficient alternative to the trial or arbitration to resolve a particular conflict/dispute.

Course contents

Course Program:

Module I: The Regulatory Aspect

• The concept of conflict
• The placement of negotiation and mediation within the conflict dynamics
• National and International Law of Mediation
• Negotiation in the Law 162/2014
• Different types of mediation: voluntary, mandatory, mandatory by contractual or statutory clause, court-delegated mediation
• Civil and commercial mediation
• Online mediation
• Specific in-depht analysis about family mediation, environment mediation and mediation in digital markets

Module II: The Implementative Aspect

• Types of negotiation
• Deciding if and when it is advantageous to negotiate
• The elements of negotiation according to the Harvard School
• Positions, interests, and needs of the parties in negotiation. The BATNA (Best Alternative to a Negotiated Agreement)
• Phases, purposes, and techniques of negotiation
• Communication and tools for active listening
• The most common mistakes in negotiation. How to overcome emotional, perceptual, and cognitive obstacles
• The role of the lawyer in negotiation and mediation
• The role of the mediator

Module III: The Workshop Aspect

• The final part of the course has a workshop aspiration: students will be required to conduct simulations in class based on cases provided by the professor. Students will be divided into groups and invited to simulate the roles of mediator/negotiator, lawyer representing a party in mediation/negotiation, and the parties themselves in civil and commercial matters.

Given the structure of the didactic modules, extensive workshop activities will be emphasized. After identifying the regulatory framework and studying mediation and negotiation techniques through the learning-by-doing approch, students will be divided into groups and given cases to work on. This activity will be an integral part of the final assessment for atteding students. The workshop path started during the course can be continued by those who wish to participate in the following year's National Mediation Competition (CIM) organized by the Milan Arbitration Chamber. Access to this activity, however, is subject to a specific call published a few months before the event. Passing the present exam is a preferential criterion for participating in the selection. Additionally, those wishing to deepen their knowledge in this field can, besides accessing internships, participate in research projects focused on mediation and conscious conflict management. Detailed explanations of these projects will be provided during the course.

Readings/Bibliography

For students who attend the course (at least 80% of the lessons, certified by specific verification during the lessons), only the material indicated by the professor and available online will need to be studied.

Non-attending students will need to study all the following indicated material: 

• Luiso P.F. "Diritto processuale civile" V 2023 Giuffrè Editore, or the most updated edition, only the following chapters: 1, 2, 3, 4, 5, 6, 7, or those relating to mediation and assisted negotiation.
• Fisher R., Ury W., Patton B. "Getting to Yes" (Italian edition: "L’arte del negoziato"), Corbaccio 2019.
• Dalla Bontà S. (ed.) "Le parti in mediazione: strumenti e tecniche. Dall'esperienza pratica alla costruzione di un metodo," Trento 2020, available online in open access at: http://hdl.handle.net/11572/269082, only the chapters by the authors: Dalla Bontà S. "Per un’efficace gestione del tavolo di mediazione. La preparazione di parte e avvocato"; Di Rocco M. "La preparazione di parte ed avvocato in mediazione. Un caso concreto"; Campi E. "Fare la differenza al tavolo di mediazione. La comunicazione efficace."

Teaching methods

All lessons will be  interactive and conducted with innovative teaching methods based on learning-by-doing. Active participation by students is therefore necessary. The third part of the course, which has a workshop nature, will be characterized by a practical approach: the knowledge acquired in the previous modules will be immediately applied by the students during the simulations they are called to perform. These simulations will be an integral part of the final assessment. Attendance is therefore highly recommended.

 

Assessment methods

The final exam aims at testing the acquired knowledge of theoretical and technical notions in negotiation and mediation. The exam will consist of an oral test on the course topics. During the interview, the student will also be asked to discuss the negotiation strategy of some cases presented by the professor. For attending students, the case discussion is replaced by the simulation activity conducted during the course, which will account for 60% of the final assassment.

Thesis

Regular attendance of the course is a privileged condition for the assignment of the thesis in the discipline, the topic of which will be agreed directly with the professor according to the student's skills within the topics not yet assigned.

Teaching tools

The professor will use the "virtual course" in e-learning mode to support face-to-face teaching. The student will thereby find all the material discussed and analyzed in class.

Office hours

See the website of Elena Gabellini