Managing Legal and Negotiation Knowledge

Managing Legal and Negotiation Knowledge

John Zeleznikow (Victoria University, Australia)
Copyright: © 2011 |Pages: 7
DOI: 10.4018/978-1-59904-931-1.ch101

Abstract

Legal practice is primarily concerned with the transfer of legal knowledge from practitioners or clients. Whilst lawyers may draft contracts and make representations on behalf of their clients, their primary task is to advise their clients on appropriate remedies and courses of action. (Rodriguez et al 2002) claim that a lawyer sells what he knows, often in the form of a document (a contract, an opinion, a report) and much more often in a trial before a court or in a negotiation with a counterpart. (Khandelwal and Gottschalk 2003) claim that lawyers can be defined as knowledge workers. They are professionals who have gained knowledge through formal education (explicit) and through learning on the job (tacit). To carry out their daily work lawyers also have to manage a great many sources of information. It is important for them to be aware of current changes in legislation and jurisprudence and to consult books and articles. But it is also necessary to manage the information that is generated from within the practice in the course of lawyers’ relationships with their clients. In a law firm’s day to day work, a mass of information and knowledge is generated which has to be managed efficiently, so that it is easily, quickly and intuitively accessible whenever it is needed by any of the firm’s offices. (Rusanow 2003) defines legal Knowledge Management as the leveraging of the firm’s collective wisdom by using systems and processes to support and facilitate the identification, capture, dissemination and use of the firm’s knowledge to meet its business objectives. We commence by emphasising the difficulty of developing generic legal knowledge management approaches given the multiplicity of different legal systems. We next focus upon maintaining legal knowledge using an argumentation-based approach and building legal knowledge based systems for World Wide Web. Since, the goal of the legal process is to avoid litigation, we conclude by discussing how knowledge can be managed to provide Online Dispute Resolution.

Key Terms in this Chapter

Mediation: Mediation is a private, informal dispute resolution process in which a neutral third party (the mediator) helps disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties.

Principled Negotiation: Principled negotiation advocates separating the problem from the people.

Common Law: Common law is the legal tradition that evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes that courts have adjudicated.

BATNA: A BATNA (Best Alternative to a Negotiated Agreement) is what would occur if an issue in dispute is not resolved.

Civil Law: Civil law may be defined as that legal tradition which has its origin in Roman law and was subsequently developed in Continental Europe. It is highly systematised and structured and relies on declarations of broad, general principles, often ignoring the details.

Burden of Proof: The burden of proof is the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.

Ontology: An ontology as an explicit conceptualization of a domain. Legal ontologies represent legal norms and are very significant for developing legal knowledge-based systems on the World Wide Web.

Bargaining in the Shadow of the Law: Because bargaining in legal domains mimics the probable outcome of litigation, the outcomes of litigation provide beacons or norms for the commencement of any negotiations.

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