HOW WE MEDIATED THE MICROSOFT CASE
Author(s): ERIC D. GREEN AND
JONATHAN B. MARKS Date: November 15, 2001 Page: A23
MEDIATORS NEVER KISS AND TELL. BUT
WITHIN THE BOUNDS OF APPROPRIATE CONFIDENTIALITY, LESSONS CAN BE
LEARNED FROM THE THREE-WEEK MEDIATION MARATHON THAT LED TO MICROSOFT'S
SETTLEMENTS WITH THE DEPARTMENT OF JUSTICE AND WITH AT LEAST NINE
Neither the mediation nor the settlements would have happened
if Kollar-Kotelly not acted to suspend litigation and order
settlement negotiations. The judge's Sept. 28 mandate was blunt:
"The Court expects that the parties will . . . engage in an all-out
effort to settle these cases, meeting seven days a week and around
the clock, acting reasonably to reach a fair resolution."
Kollar-Kotelly gave the parties two weeks to negotiate on their own,
ordering them to mediation if they couldn't reach agreement by then.
The court bounded its "24/7" timetable by ordering the parties to
complete mediation by Nov. 2. Tight timetables command attention. In
mediation, just as in negotiation, time used tends to expand to fit
time available. A firm deadline gets the parties to focus, even
though it sometimes results in the hours before the deadline
resembling the last two minutes of an NBA final game.
We are both mediators with 40 years of combined
experience. We have mediated many antitrust and computer cases. We
are avid computer consumers. But we are not experts in the
applicable law or the disputed technology.
Even had we had such expertise, our objective would not have
been to try to craft our own settlement solution and sell its merits
to the parties. We believed that the only chance of getting all or
most parties to a settlement was for us to work intensively to help
them create their own agreement. Our "job one" was to facilitate and
assist in the gestation, birth, and maturing of such an agreement.
We had to be advocates for settlement - optimistic and persistent -
but not advocates for any particular settlement.
Reaching a settlement required working with adversarial
parties with very different views about a large number of
technologically and legally complicated issues. When we arrived on
the scene, the parties had begun exchanging drafts of possible
settlement terms. There were issues concerning whether certain
matters should be included at all, about the scope of acts to be
mandated and proscribed, and about the words that should be used to
capture the complex reality that would have to be regulated in any
After initial separate briefings, we moved the process into
an extended series of joint meetings, involving representatives of
the Anti trust Division, the state attorneys general and their
staffs, and Microsoft. No party was left out of the negotiations.
The bargaining table had three sides.
Throughout most of the mediation the 19 states (through their
executive committee representatives) and the federal government
(through the staff of the antitrust division) worked as a combined
"plaintiffs" team. We worked to ensure the right mix of people, at
the table and in the background.
The critical path primarily ran through managing and focusing
across-the-table discussions and drafting by subject matter experts
- lawyers and computer mavens - with knowledge of the technological
and business complexities gained through working on the case since
its inception. The critical path also required working with senior
party-representatives who could make principled decisions about
priorities and deal breakers.
Our objective was a global settlement. As the mediation ended
last Tuesday, most parties had agreed to the proposed Final Judgment
that will be reviewed by Judge Kollar-Kotelly over the next several
months. But the attorneys general of several states decided they
preferred continued litigation to what they saw as an in adequate
Even as settlement advocates, we have no quarrel with the
partial settlement that was achieved. Our most important measures of
a successful mediation don't turn on whether all - or any - parties
settle. Successful mediations are ones in which mediators and
parties work to identify and overcome barriers to reaching
agreement. Successful mediations are ones in which all parties
engage in reasoned discussions of issues that divide them, of
options for settlement, and of the risks, opportunities, and costs
that each party faces if a settlement isn't reached. Successful
mediations are ones in which, settle or not, senior representatives
of each party have made informed and intelligent decisions. The
Microsoft mediation was successful.
Federal District Judge Colleen Kollar-Kotelly took over the case
in July after the Court of Appeals partially affirmed the prior
judge's findings that Microsoft had violated antitrust laws.
2001 Globe Newspaper Company
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