Gli avvocati fra decisione, transazione e mediazione: la maledizione del prisma del thema decidendum

This article examines the cultural, cognitive and professional factors that hinder legal professionals in the negotiation of conflicts. The underlying thesis is that traditional legal training, being built around the need to define a thema decidendum, produces a mental habit that leads to reducing human conflict to an objectified, retrospective and polarised dispute, suitable for resolution in accordance with the law. Building on this premise, the article demonstrates how even the legal model of settlement, as set out in Article 1965 of the Civil Code, far from constituting a genuine alternative perspective, replicates on a contractual level the same narrow logic of decision-making: the conflict is not settled in its entirety, but rather a ‘dispute’, that is to say a selected, reduced and constructed portion of the conflict designed to allow for mutual concessions. An analysis of the concept of a dispute, its retrospective structure and its possible conventional delimitation thus allows us to highlight the intrinsic limitation of the settlement paradigm and, correspondingly, to show how the agreement can instead extend beyond the scope of the settlement, through different negotiation models capable of involving interests, parties and solutions that go beyond the mere dispute. From this perspective, the essay then highlights the paradox of civil and commercial mediation: although oriented towards agreement, it is incorporated by the legislator into the language of the claim, the subject matter and the grounds of the claim, with the effect of dragging the prism of the thema decidendum into the mediative space as well. This leads to a twofold critical outcome: on the one hand, the inappropriateness of categories such as ‘consensual justice’; on the other, the need to rigorously distinguish the path leading to a decision from that leading to an agreement. On this basis, the article argues that overcoming the ‘curse of the thema decidendum’ requires a profound overhaul of legal education and the systematic introduction of the science of negotiation as an autonomous discipline, necessary to enhance the capacity to produce agreements and, therefore — as suggested by Cass. 8473/2019 — to develop a “new professional figure” capable of operating effectively within non-adjudicative conflict resolution systems.