In the face of antitrust charges, Google’s new guiding principle is “Don’t litigate, negotiate,” according to the Wall Street Journal.
In recent years, U.S. and European regulators have accused Google of abusing its dominance in online searches by promoting its own services, such as Google Shopping, at the expense of its competitors’ services. Rival comparison-sites such as Nextag complain that Google lists their products far below Google Shopping results, where they are less likely be found, in consumer searches.
Last year, Google avoided formal charges by the Federal Trade Commission by agreeing to make small changes to its search practices. This February, Google reached a similar deal with European Commission regulators, promising to reserve space high on its European search pages for competitors to offer their own search results, albeit only after paying Google for the space. The rivals’ offerings would be shaded and marked as “alternatives.”
The deal allows Google to avoid an official probe and a potential fine of up to 10% of its global annual revenue, which was $59.8 billion in 2013, according to the Journal. Google competitors, including Microsoft and Nokia, said the settlement terms did not go far enough.
In stark contrast to Google’s strategy of negotiation, Microsoft fought European antitrust charges for a decade, a battle that ultimately cost the company more than $2.5 billion in fines.
Over the course of the three-year European investigation, Google worked closely with regulators, at times flying its engineers to Brussels, Belgium, to describe the intricacies of its products. After two earlier tentative agreements fell apart in the face of criticism, Google offered “slightly sweetened deals,” the Journal reports. Both sides said they had been eager to avoid a court battle.
Given the high costs and risks of litigation, it usually pays for parties to try hard to reach a settlement before taking their dispute to court, according to Harvard Law School professor Robert H. Mnookin.
Here are five strategies from Mnookin to help you and your lawyers turn disputes into deals:
1. Explore the possibility of engaging in a formal dispute-resolution process such as mediation before going to court.
2. Identify and express your myriad interests in the dispute, including those that are not financial, and encourage the other side to do the same. For example, if you feel wronged, you might ask for a formal apology or evidence that the other party is taking steps to correct its mistakes.
3. Ask your lawyers to systematically predict the outcome of a possible court case through decision-analysis tools such as decision trees. Such analyses often make it crystal clear that a negotiated settlement would be a far less risky and costly option.
4. Open up to your lawyer about all of your interests and concerns, including those that are personal and emotional. Too often, clients allow their lawyers to focus exclusively on financial claims—and unwittingly narrow the possibilities for a negotiated settlement.
5. Align your interests with your lawyer’s through the use of ultimatums and incentives. For example, you might promise your lawyer a financial bonus if she settles the case in a timely manner.