The Mediator

By Emily Gold Boutilier / March / April 2002
July 1st, 2007
When a federal judge picked Eric Green to mediate the Microsoft antitrust case, many doubted that he - or anyone - could negotiate a settlement between the software giant and the government. The case had dragged on for more than three years, and an earlier mediator had concluded that the differences between the parties were "too deep-seated to be bridged." But after Green led three weeks of mediation, Microsoft offered a settlement that the U.S. Department of Justice and nine state attorneys general were willing to accept.

Although Green is no expert on antitrust law or computer software, he is a pioneer in something called alternative dispute resolution. The idea is to cut down on time-consuming courtroom battles by working with the fighting parties to find a solution preferable to any a judge or jury is likely to dictate. The approach goes back to the 1970s, when Green, then a trial lawyer in Los Angeles, was working on a seemingly irresolvable patent-infringement case. "To get out of the bottomless morass," he says, "we invented something that came to be known as the mini trial." After both sides agreed to work toward a resolution outside the courtroom and under the guidance of a neutral party, the case was settled in two and a half days. That mini trial was a forerunner of the mediation approach in widespread use today.

Green argues that the Microsoft case demonstrates the efficacy of his brand of dispute resolution, "even in the most closely watched public litigation of our day." The first mediator, U.S. appeals court judge and antitrust expert Richard Posner, never brought the opposing parties together, choosing instead to issue settlement drafts and revisions himself. Green, in contrast, presided over meetings that brought all sides to the table and met privately with the parties. Sometimes he and his mediating partner suggested solutions and trade-offs. The resulting settlement, which must still be approved by U.S. District Judge Colleen Kollar-Kotelly, allows PC manufacturers to remove Microsoft icons from their computer screens and requires Microsoft to disclose the codes of its Windows operating system to rivals. Some politicians have criticized the deal, saying it's too narrow and might be unenforceable and ineffective. Critics have also said that the previous leaders of the Justice Department, who were Clinton appointees, never would have accepted the offer.

Green, however, maintains that the mediation was a success, despite the fact that nine state attorneys general rejected Microsoft's offer. He says the real measure of success is whether all sides understand the issues that divide them, as well as the settlement options and implications of not settling. "It's not the mediator's job to say what the settlement should be," he says. "And in the end, whether there is an actual basis for settlement is up to the parties." That, he adds, is the beauty of mediation: no judge or jury can impose a decision from on high. "This makes it a risk-free process," he says. "In almost all cases it's better to try to give the parties the opportunity to find their own solution. It's that element from which all the benefits of mediation flow."

While the Microsoft case was Green's most celebrated, he's even prouder of a recent dispute that was resolved without any papers filed in court. The case involved sixty-nine families in Toms River, New Jersey, who blamed three companies for causing cancer in their children. Green presided over a twelve-day scientific inquiry that ended with every family accepting an undisclosed settlement. "I think this was a huge leap forward in the whole conflict-resolution field," he says. "It's a leap beyond litigation."

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March / April 2002