B5038 - Negotiation and Mediation

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

The course, which will take place during the first semester, will be divided into four parties ideally, given by prof. Elena Gabellini, with the collaboration of professional negotiators and mediators.

Module I: Introduction to Negotiation and Mediation

• Conflict and its theories. Roles of negotiation and mediation.
• Negotiation and mediation within the framework of Alternative Dispute Resolution (ADR). Overview of the international and European landscape

Module II: Practice on Negotiation and Mediation

• Negotiation and its application: the elements of negotiation according to the Harvard School.
• Mediation and its application
• Communication and the tools of active listening
• The lawyer as negotiator and mediator

Module III: The Regulatory Aspects

• Civil and commercial mediation, Legislative Decree No. 28/2010
• Mediation in other contexts, with a specific focus on family mediation
• Negotiation in the Law 162/2014
• Collaborative practice

Module IV: Practical Workshop Dimension

• Throughout the course, students will be encouraged to engage in practical exercises aimed at supporting the learning process. In particular, they will take part in classroom simulations based on case studies provided by the professor. Students will be divided into groups and will be invited to simulate the roles of mediator/negotiator, party attorney in mediation/negotiation, and party involved in civil and commercial cases.

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 approach, students will be divided into groups and given cases to work on. This activity will be an integral part of the final assessment. 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

Students who attend the course (at least 80% of the lessons, certified by specific verification during the lessons), will only refer to the materials indicated by the professor and available online.

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

- Luiso P.F., Diritto processuale civile, V, 2025, Giuffrè Editore, solo i capitoli: 1, 2, 3, 4, 5, 6, 7, 22;

- Fisher R., Ury W., Patton B., L’arte del negoziato, Corbaccio, 2019;

- Dalla Bontà S. (a cura di), Le parti in mediazione: strumenti e tecniche. Dall'esperienza pratica alla costruzione di un metodo, Trento, 2020, in open access to link: http://hdl.handle.net/11572/269082 only chapters: 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.

- Dalla Bontà S. (a cura di), Comunicare, negoziare e mediare in rete, Trento, 2021, in open access to link:  https://iris.unitn.it/retrieve/handle/11572/306972/457322/coll.quad.-51-2021-Comunicare%2c%20negoziare%20e%20mediare%20in%20rete, only chapters: Beretta R., Le procedure di negoziazione nell’era digitale. La rete: una “quarta parte” al tavolo del negoziato?Dalla Bontà S., Il giurista-avvocato alla prova del comunicare, mediare e negoziare in rete nella soluzione del contenzioso civile. Alle sfide della tecnologia la risposta di un modello ‘umano’ di giurista-avvocato. 

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. Attendance is strongly recommended: both the workshop activities and the practical-operational components are integral parts of the learning process and are considered key elements in the final assessment.

 

Assessment methods

The final exam assesses the student's acquired knowledge of the theoretical and technical aspects of negotiation and mediation.

The assessment will consist of an oral exam covering the topics addressed during the course. Specifically, the oral exam will include three questions: one of a general nature, one focused on a specific topic, and one of a more practical nature concerning negotiation/mediation techniques, which may include the analysis of a practical case. For attending students, the practical question will be replaced by a simulation activity carried out during the course, which will account for 50% of the final grade.

By way of example, the following criteria will be used to assign the final mark (that will be out of 30/30):

- knowledge of a very limited number of topics, extensive support by the interviewer to address and answer the questions, basic yet appropriate language à 18-19/30;

- knowledge of a limited number of topics, ability to autonomously address basic legal problems, use of appropriate language → 20-24/30;

- comprehensive knowledge of the programme, ability to autonomously and critically analyse legal problems, use of specific terminology → 25-29/30;

- extensive knowledge of the programme, ability to reason autonomously and critically analyse legal problems, make connections between the topics, ability to master the specific terminology and ability to present legal arguments. → 30-30L/30.

The exam may only be taken after passing the Private Law exam (Institutions of Private Law).

Students with disabilities will be supported by the guidelines provided by the relevant university offices.

Students with learning disorders and/or temporary or permanent disabilities: please contact the office responsible (https://site.unibo.it/studenti-con-disabilita-e-dsa/en/for-students) as soon as possible so that they can propose acceptable adjustments. The request for adaptation must be submitted in advance (15 days before the exam date) to the lecturer, who will assess the appropriateness of the adjustments, taking into account the teaching objectives.

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