Mediator Appointed in Microsoft, DOJ Case

By Peter Galli  |  Posted 2001-10-15

After failing to reach a negotiated settlement in the time frame imposed by Washington Dis-trict Court Judge Colleen Kollar-Kotelly, as well as deciding on a mediator, Microsoft Corp. and the U.S. Department of Justice had one appointed for them.

Judge Kollar-Kotelly announced on Sunday the appointment of Eric Green, a law professor from Boston University, as mediator for the remainder of the discussions. Interestingly, Microsoft and the DOJ agreed on and proposed the appointment of Green.

The move followed Kollar-Kotellys order of two weeks ago, when she gave the parties a deadline of October 12 to again try and settle the antitrust case by themselves and out-of-court. If that failed, she said, she would then appoint a mediator.

Microsoft spokesman Jim Desler declined to comment on Friday, saying "As contemplated by the District Courts September 28th order, Microsoft participated earlier today in a conference call with the Plaintiffs and Judge Kotelly on the status of the court ordered settlement talks. Micro-soft will not have a comment on the specifics of the call or status of the on-going talks at this time," he said.

On Thursday Desler said the parties had been engaged in intensive settlement talks, which had been conducted in good faith. "If we have been unable to reach a settlement by tomorrow, the parties may inform the Judge that they have agreed on a mediator or, if not, the Judge could ap-point one herself," he said.

Neither Microsoft nor the government were keen for the matter to go before a mediator. Kollar-Kotelly has herself made this clear, but wants the matter settled as quickly as possible.

She previously told them that if, by Friday, they had not been fully successful with their settlement talks, "the parties shall submit to Chambers, on October 12, 2001, the name of an agreed-upon individual to act as facilitator/mediator to assist the parties in their efforts.

"If the parties cannot agree upon an individual, then the Court will appoint such an indi-vidual to act as their facilitator/mediator," she said.

Microsofts Desler declined to say if the name of any possible mediator had been given at Fridays discussions between the Judge and the others.

In November 1999 District Court Judge Thomas Penfield Jackson, who was hearing the case, proposed a process mediated by Seventh Circuit Court of Appeals Chief Judge Richard Pos-ner.

The process was unsuccessful and, in April 2000, Posner announced that he had "endeav-ored to find common ground that might enable the parties to settle their differences without fur-ther litigation. Unfortunately, the quest has proved fruitless.

"After more than four months, it is apparent that the disagreements among the parties con-cerning the likely course, outcome, and consequences of continued litigation, as well as the impli-cations and ramifications of alternative terms of settlement, are too deep-seated to be bridged.

Dana Hayter, an antitrust expert at Fenwick & West LLP in San Francisco and a former at-torney with the Justice Department who worked on the Microsoft antitrust case at that time, said he was skeptical mediation would be effective.

"I think it is unlikely that she will get the parties to settle or that mediation will effectively resolve the issues in the case. Given how far apart the camps were on every substantive issue in the joint status report filed recently, I believe the remedy phase will ultimately have to be tried," he said.

But the parties, with or without a mediator, still have until November 2, 2001 to settle the matter. Failing that, remedy hearings would start, with briefs due in December and the hearing to start March 11, 2002.

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