Eric D. Green, a law professor selected to help settle the government's landmark antitrust case against Microsoft Corp, has what friends and colleagues say is a knack for helping adversaries find common ground.
He has his work cut out and not much time.
The dispute has passed through the hands of a federal judge, an appeals court and a previous mediator, who was stymied in efforts to negotiate an end to a battle that began in May 1998.
Green, 55, with almost 20 years experience mediating cases and little antitrust expertise, has a week left to come up with a solution. The new judge in the case has said she will move ahead with plans for court hearings in March if the opposing sides haven't settled by Nov. 2.
"Depending on the type of case, people who work with him think he is an expert on that area of law," said Steven Comen, a Boston lawyer who has hired Green to mediate several cases. "He learns what's important to learn in every case. If anyone can find a mediation solution, he can."
Microsoft and the government remain far apart. At a hearing last month, a lawyer for the No. 1 software company said a government proposal to conclude the case would be "devastating" to the company's business.
"We're putting all our energy into" seeking a settlement, Microsoft Chairman Bill Gates said Thursday.
Last year, Judge Richard Posner of the 7th US Circuit Court of Appeals failed to negotiate a settlement that satisfied Microsoft, the Justice Department or the 18 states that sued the company.
Green has been involved in the field that lawyers call alternative dispute resolution since 1982. He teaches the subject at Boston University School of Law and has started two mediation firms, Endispute and Resolutions LLC.
Colleagues say Green's biggest asset is relating to opponents in a case.
"Eric has a good ability to feel what's sensitive to someone that they haven't told him about," says Marjorie Aaron, one of his former law school students and later a colleague at Endispute.
Green specializes in complex business litigation and has handled a large number of construction cases. Comen mentioned Green's persistence in settling a fight between an architect and a construction company. After months of talks and mini-trials, he crafted a remedy that let them to remain partners.
"During different times we reached out to Eric for a settlement," Comen said. "It would not have happened if Eric didn't keep trying to discover the obstacles."
Stephen Houck, a New York antitrust lawyer who represented the states against Microsoft at the antitrust trial and a classmate of Green at Harvard Law School, says Green may succeed where Posner failed.
"Judge Posner was neither the judge presiding over the case, nor did he have a mediator's background," said Houck, now a partner at Reboul, MacMurray, Hewitt, Maynard & Kristol. "Green has a better background as a mediator and might be able to find some middle ground."
Since then, a federal appeals court in Washington has upheld findings by trial Judge Thomas Penfield Jackson that Microsoft broke the law. The appeals court overturned Jackson's order to split Microsoft in two, and US District Judge Colleen Kollar-Kotelly was picked to replace Jackson.
There also has been a change in administration in Washington and speculation the Justice Department may be more willing to settle.
"The case has changed and the parties might view the stakes differently," said Morgan Chu, a Los Angeles lawyer who won a US$120 million verdict for Stac Electronics in a patent infringement suit against Microsoft.
Chu noted that the findings Microsoft broke the law have withstood appellate review and the Supreme Court has declined to step in, factors that might help promote a settlement.
Few experts are optimistic. Microsoft, with its Windows operating system powering 95 percent of the world's personal computers, has shown little inclination to budge, they say.
"As far as I understand it, Bill Gates and Microsoft refuse to concede, even with the court of appeals decision, that their core business practices should be changed," Houck said. "He refuses to believe that he lost the case."
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