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In selecting Eric D. Green as settlement mediator, Microsoft Corp. and the Department of Justice opted for a veteran of alternative dispute resolution who has indirect links to Microsoft Chairman Bill Gates and Assistant Attorney General Charles James. “We certainly recognize him as a world-class mediator,” said Andrew Barton, district vice president of the American Arbitration Association. “There are only a handful of mediators who enjoy a special reputation. Eric is one of those.” “Eric was one of the sparkplugs of the whole alternative dispute resolution movement,” added Don Reder, president of Hartford, Conn.-based Dispute Resolution Inc. “I think very highly of him. He has an ability to assist parties in doing these things.” Less known are Green’s connections to Gates and James. The ties, though tenuous, could help explain how the two sides could agree on a mediator when to date they have concurred on little else. Green worked in the early 1970s at the Los Angeles law firm of Munger, Tolles & Rickershauser. A name partner of the firm, Charles Munger has served since 1979 as vice chairman of Berkshire Hathaway Inc., the Warren Buffet-controlled investment company. As has been frequently reported, Buffet and Gates are friends who often play cards together. On the government side, Green spent the summer of 1978 as an attorney-adviser to the Federal Trade Commission’s regional director in Los Angeles. He also spent 1979 as a consultant to the FTC’s real estate brokerage investigation. James worked at the FTC from 1979 to 1985 and has ties to many current and former agency employees. Green is probably best known for establishing two alternative dispute resolution companies. He helped create in 1982 what would become JAMS/Endispute Inc., but left the Boston company in 1997. That year he launched Resolution Inc., also based in Boston. Since 1979, Green has served on the faculty of Boston University, where colleagues describe him as an affable professor whose classes are popular with students. Green is widely considered a leading academic and applied practitioner of alternative dispute resolution, or ADR, which is based on the idea that a case should be settled without a judge or jury. In mediation, the outsider tries to get the parties to reach a compromise while arbitrators issue binding rulings. In the Microsoft case, Green’s role is as mediator. He has written on the topic of ADR since 1978, and some of his work in the late 1990s dealt with using ADR for international disputes. A favorite of Green’s techniques is to assemble the top executive from both parties in a small room and make them listen to a full-day hearing on the case. Lawyers for each side present evidence on why they deserve to win. “The mere process forces people to see and hear the strength of the other side,” said Joseph Brodley, a colleague of Green’s at Boston University School of Law. “This gives them a basis for discussion.” Reder said Green is perceived as a good listener, which could be key to solving the Microsoft-Justice Department dispute, which has dragged on for so long. “He is very likable, which is important for a mediator,” he said. “He comes over in a very non-threatening way.” Green’s selection represents a departure from the last major push to settle. Judge Thomas Penfield Jackson of the U.S. District Court for the District of Columbia in 1999 selected Judge Richard Posner, a federal appeals court judge in Chicago who is one of the country’s leading antitrust experts. Posner led four months of discussions, but could not work out a deal. Jackson’s successor on the case, Judge Colleen Kollar-Kotelly, went in a different direction based on the recommendation of Microsoft and the government. Rather than appoint an antitrust expert, she appointed a mediation specialist. “This is a very logical decision,” said Robert Lande, a professor at the University of Baltimore law school who follows the Microsoft litigation closely. “If the first approach did not work, try something different.” But Green is no antitrust novice, noted Brodley, BU’s resident competition policy expert. Green handled antitrust matters while at Munger Tolles from 1974 to 1977, Brodley said. “He can’t compare to Judge Posner” in his antitrust expertise, Brodley said. “But he has a method to bring people to feel they are both gaining from settling. It takes a method of establishing a working atmosphere.” Mediation experts said skill for bringing parties together almost always trumps subject knowledge. “In every dispute there is a deal to be made somewhere,” Reder said. “The goal is to find creative ways to resolve the dispute, which is something that comes with experience.” “Good mediators really are in a class of their own,” Barton said. “They can work through different personalities and work through technical matters. They are effective communicators. They help the parties see eye-to-eye.” Lande said he sees a downside to this push for mediation in the Microsoft case. It could provide a convenient way for the Justice Department to settle the case on terms favorable to the software company without risking a backlash from the 18 states involved in the litigation, he said. That is because Kollar-Kotelly has strongly endorsed ending the case via mediation, which suggests she is unlikely to reject a settlement — even one the states find objectionable. “What is the incentive for a new judge that does not know the facts,” Lande asked. “It would be to take the settlement even if the terms were wimpy.” Yet that assumes there is a settlement, and Green only has until Nov. 2 to act. After that, the judge said the parties should start preparing for trial, though they could still try to settle until the case starts in March. Reder said such a schedule could work because the parties already are intimately familiar with the facts. What is required is negotiation over a remedy. If the parties decide the risk of not settling now outweighs the downside of the deal on the table, then Green will succeed, Reder predicted. Copyright (c)2001 TDD, LLC. All rights reserved.

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