Microsoft and Mediation Negotiations

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Microsoft and Mediation Negotiations

Since its antitrust trial began in 1998, the software giant Microsoft and the government have met in negotiations three times; now, a fourth round of mediation has been scheduled, these to be presided over by Richard Posner, the chief judge for the 7th U.S. Circut Court of Appeals in Chicago. Although the two sides differ in opinion on many key issues, both sides have maintained that they are open to settlement. The appointment of Posner has aroused some controversy however, because some, including William Kovacic of George Washington University, say that his views on antitrust cases are not in line with the governments; that is, they do not favor the breaking up of large firms found to be monopolies. Microsoft was determined to be a monopoly in a fact finding by Judge Thomas Penfield Jackson performed three weeks ago.

The movement towards mediation and away from traditional adjudication is an example of alternative dispute resolution (ADR), which is becoming increasingly common in modern society. While alternative dispute resolution programs were previously found mainly in local, informal settings, “Mediation programs are more and more attached to existing court systems or social service agencies rather than community or neighborhood groups.” (Merry, 1984) Because the mediator in the Microsoft case was appointed by the trial judge to oversee settlement talks, the mediation was explicitly linked to the existing court system. Mediation is being used as a tool by the trail judge to avoid a long and costly trial. Galanter, as cited by Merry, says that while the procedures used by the court and mediations may differ greatly, the authority claimed and the form of social control exercise...

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...nd the government have developed a set of relations that are mutually beneficial. To fight out their differences in court would leave both bitter and any dealings with each other in the future hostile. Because the conflict is one of interest and not of dissensus, there is more incentive to settle. Both the government and Microsoft will benefit from the continued operation of the firm; thus, they have the same goal, but disagree on how best to achieve it. Such a conflict of interest lends itself to the compromise model , in which the establishment of guilt is not at issue and also where the two parties involved in a dispute look forward to a relationship with each other in the future. The compromise model stresses compromise and agreement which is best achieved not through the formal court system, but through informal means of dispute resolution such as mediation.

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