gaining endowments, mediations are said to be taking place in the shadow of the law. This means that each side bears in mind what could happen in court throughout the negotiations. Posners appointment as mediator will amplify this effect because his presence as a US district court judge reminds both sides of the possible outcomes if the case were unable to reach an agreement in mediation and had to return to court. Another important factor in the Microsoft antitrust case is the frequency with which Microsoft and the government interact with one another. Because Microsoft is a forerunner in a pioneer industry, the government constantly keeps watch over its operations, trying to ensure that its business practices are both fair and legal. This necessitates taking the firm to court when the government questions the legality of the operations or actions of Microsoft. This frequent meeting in court fulfills the first of three requirements for a party to be known as a repeat player, that the unit has had and anticipates repeated litigation. The next two requirements are also met by both Microsoft and the government; both have relatively low stakes in the outcome of any one case. For the government, the loss of this case will not result in any significant revenue declines. If Microsoft loses, they could be forced to sell their browser instead of giving it away, which could only increase revenues. The firm could also be broken up into several firms, but the owners of Microsoft would retain ownership of the new companies. The third requirement, that a party has the resources to pursue its long term interests, is also met by both the government and Microsoft, who employ full time lawyers as part of their regular staff. (Galanter, 1975) The status of both of the litigants as repeat players has a large impact on the preferred means of dispute settlement in this particular case. Because the two parties have similar resources and goals and will fa...
