by Terry Nathan
Defending Your Rights
One of the integral missions of our association is to advocate for the rights of independent publishers. Whether the issue is industry-wide or member-specific, we work very hard to make a difference for everyone involved. This challenging, frustrating, and critical part of the executive director’s job can also be one of the most rewarding parts. I take this responsibility very, very seriously. And, thank goodness, our board of directors is here to help decide which issues we are able to work on, given our limited resources.
As you might imagine, advocacy issues stir up controversy. Many members press for us to do more, and many times I wish we could be doing more. The issues that arise are difficult ones, and in almost every case there are valid arguments on both sides. I am a peaceful person for the most part, and although advocacy controversies always take me outside my comfort zone, I like to think my peaceful nature is an asset in resolving some seemingly intractable disputes.
Let’s look at both industry-wide and member-specific issues.
Returns. Amazon. Google. The Consumer Product Safety Act. Distributor bankruptcies. Wholesalers paying late. Review copies being sold on the Internet. Overruns. Discounts. More returns. Argh!
These are just a few of the many areas where challenges to publishers arise. And many of them are so complex and/or so longstanding that it seems impossible to make a difference. They may involve practices that are important to the growth of the industry and/or practices that are just plain wrong.
As an association, IBPA owes it to its members to do something about them, whether that means informing and educating or actually moving a mountain. Given the nature of industry-wide challenges, we tend to do the former much more than the latter.
Drawing public attention to unfair practices is the first step toward effecting change. This is something we have done often and will continue to do. And we have reason to believe it can make a real difference.
For instance, about five years ago we discovered that a company was rebinding books and selling them to the library market without permission. They had been doing this for many years. Jan Nathan, then our executive director, brought their activities out into the open and negotiated a deal to properly license the rebinding of books.
As for issues like returns and slow pay, believe me, nothing would make me happier than to take returns out of the bookselling equation, or to have everybody always pay publishers on time. We will continue to watch important areas, establish and join industry groups to call attention to issues they involve, and move those proverbial mountains wherever and whenever possible. Through the Independent and otherwise, we will also continue to bring you information about issues important to your success as a publisher.
Have you ever experienced a problem with one of your suppliers or vendors and not known what to do? Did you feel—or do you feel—that you are being treated unfairly, and that you’re alone? I hope not.
Disputes arise in every business, and we are here to try to help members who are facing them. I receive several calls every week from members wanting to let me know about a sour situation. Many times these issues are resolved on those same phone calls, although not without emotional upset and revisiting contract terms. But some situations need more.
Ten years ago, when he was serving on our board, Kent Sturgis of Epicenter Press spearheaded a new program for addressing challenges our members face when they find themselves in a dispute situation. Originally called our Ombudsman program, the Dispute Resolution Program was introduced in August 1999. Since then hundreds, if not thousands, of disputes have been brought to our attention, and resolved.
Here are key steps in the program.
The Steps That Usually Suffice
Step 1. Make your best effort to resolve the dispute. Often disputes arise from misunderstandings between IBPA members and vendors (such as printers, graphic designers, and editors), or between members and their own subcontractors (including authors, translators, and publicists). Be sure to reread any relevant contract you signed to determine what it says about rights and responsibilities.
Sometimes it helps to consult informally with a fellow publisher or a publishing association president in your city or region. They may have suggestions about ways to resolve the dispute. Also, although you might be surprised to hear it, company reps who sold you the product or service that’s in dispute can be an ally in seeking resolution within their companies.
If you believe you may have been partly responsible for the problem that has led to the dispute, be prepared to compromise to achieve a solution.
Step 2. Take your problem to the top. Most companies in the book industry want to maintain good customer relations and will strive to address any concerns you may have. If you have not received satisfaction from the individuals you have been dealing with, take your problem to someone in upper management, such as the sales manager or perhaps the company president.
Keep detailed records about the problem, including correspondence and documents, and make good notes of your discussions with the other party. When conversations break down, explain your problem in writing. Do not make threats. Do not allow a personality clash to interfere with businesslike efforts to resolve your problem.
Step 3. Contact IBPA’s Dispute Resolution Program. If you have not been able to resolve the problem yourself, contact the IBPA office by calling 310/372-2732, or emailing firstname.lastname@example.org.
If Further Action Is Necessary
Step 4. Accept intervention. In those rare cases when a phone call or exchange of emails doesn’t lead to resolution, you can get a new group of steps going by making a formal application to the Dispute Resolution Program; simply ask the IBPA office for a copy of the brochure about the program and pay particular attention to its “What Information to Submit” section.
If you are accepted into the program, your description of the dispute will be forwarded to a past IBPA president, who will intervene to facilitate a satisfactory resolution, if possible.
The past president, a volunteer, will talk with you about your dispute and may make informal calls to you and the other party if it appears there is still a chance for early dispute resolution. There is no charge to either party for this valuable service, although you must be a member of IBPA to receive it.
Step 5. Seek mediation. If intervention is not successful, and you and the other party both agree, a professional mediator will be assigned. The mediator—a dispute resolution expert with no connection to IBPA or to either party in the dispute—contacts both parties, briefs you about the mediation process, solicits your cooperation and the other party’s, and makes a proactive effort to broker a settlement. The parties are responsible for payment for the mediator’s services, which usually are at low or nominal cost.
In most cases, a mediation session is held, either in person or by phone. Legal representatives are usually excluded. The mediation effort is abandoned if no settlement is reached quickly.
Parties to mediation sign confidentiality agreements, and only bare statistics about outcomes of mediated cases are reported publicly.
Step 6. Submit to arbitration. If no resolution is found through mediation, and both parties agree, the case goes to an arbitration program in which a hearing is held, evidence and statements are presented, and attorneys may be present. This usually involves a face-to-face meeting, although in some cases an arbitration hearing might be held via teleconference.
The arbitration can be binding or nonbinding. After hearing the facts, the arbitrator makes an award. If the arbitration is binding, the award carries the force of law nationwide and in many states.
Arbitrators are expected to be somewhat knowledgeable about book publishing, but they have no formal relationship to IBPA or the parties.
Although the arbitration process is also private, results are published in the form of an award, and a summary will be circulated for the education of members and vendors. Costs for arbitration, including the arbitrator’s fees, are usually shared equally by the parties. Arbitration is often worth the expense, since it acts as a substitute for costly litigation in the courts.
For Ready Reference
If you are interested, you can read about other steps in our dispute resolution process at ibpa-online.org/benefits/dispute.aspx. But I have never seen a dispute that had to go past Step 3 during the 10 years this program has been running.
I encourage you to bookmark the URL for information about the program and to keep this column on file so you can begin to work through your next challenging situation. Publishers, suppliers, booksellers, and others are all in this business together, and we all need each other to succeed. Disputes will continue to arise, of course, and we at the IBPA office will continue to do our best to help. Our resources are not unlimited, but please know that if we can make a difference, we will.