Introduction This course presents an examination of major theories on negotiation and dispute resolution, and provides the opportunity to experiment concepts by practicing and improving skills in conflict management. Specific focus will be given to mediation and to other non-adjudicative means of dispute resolution, including the foundations of the Alternative Dispute Resolution (ADR) movement, and simulations on the distinct phases of the mediation process. Although the course is focused on the process of settling disputes in a legal setting, the approach to the taught subjects is multidisciplinary, establishing links with the body of knowledge provided to the dispute resolution studies by sociology, social psychology, anthropology, behavioral economics, game theory and behavioral sciences. Participants in this course will be preferred in the candidates selection for the ICC International Mediation Competition and for the Italian Mediation Competition.
Course subjects Law school courses examine dispute resolution exclusively through the lens of the judicial structure, highlighting the roles that litigators can play in court proceedings. However, most professions require a vast amount of cooperation. The aim of this course is to make students familiar with human conflict behavior and to develop and practice negotiation and mediation skills, that is, conflict management capabilities.
Theoretical background In its first part, the course will provide an overview of the most relevant theories in the dispute resolution field, including both the social science and the biological science perspective. The evolution of cooperative behavior will be explored, and decision making theories will be also introduced and applied to the specific case of negotiation and dispute resolution. The topic will be considered in the framework of heuristics and biases approach, that allows to explain decision making processing both in formal and descriptive ways. Within this framework, the human decision-making in considered as systematically driven by cognitive and emotional forces other than overt motivational aspects, often seen as the core of disputes. A comprehensive analysis of comparative legal regulations concerning dispute settlement and alternative procedures will be provided in the framework of the North-American canon, and in the light of the most recent European developments, which culminated in the EU Directive 52/2008 on mediation in civil and commercial matters.
Conflict management skills In its second part, the course will give students the opportunity to test and to experiment on the field their conflict management and dispute resolution skills. Negotiation and mediation skills will be practiced through a highly participatory approach, and with the use of a variety of formats, including discussions, videos and simulations. Students will be guided in the evaluation and understanding of positions and interests, BATNAs (Best Alternative to a Negotiated Agreement), strategic and psychological barriers to settlement, values, emotions, power imbalances and cultural differences influencing the dispute. Mediators and dispute resolution experts are regularly invited during the course to share their experiences, techniques and strategies, and to address recurrent ethical concerns in the neutral's role.
Materiale didattico e bibliografia
J. St. B. T. Evans, Dual-Processing Accounts of Reasoning, Judgment, and Social Cognition, Annual Review of Psychology, 59, 2008. R. Fisher, W. Ury, B. Patton, Getting to Yes. Negotiating Agreement Without Giving In, 1981. O. M. Fiss, Against Settlement, Yale Law Journal, 93, 1984. C. Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), Georgetown Law Journal, 83, 1995. J.J. Rachlinski, Euristics and Biases in the Courts: Ignorance or Adaptation?, Oregon Law Review, 79, 2000. F. Sander, S. Goldberg, Fitting the Forum to the Fuss: A User Friendly Guide to Selecting ADR Procedure, Negotiation Journal, 10, 1994.