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 exercised do not. That is, when Microsoft and the government enter into settlement talks, led by Posner, his authority in the mediation will not significantly differ from his authority assumed while presiding over his courtroom as a judge. He will retain approxima...
