Litigate? Arbitrate? Why Not Mediate? WHEN A MAGAZINE PUBLISHER BECOMES embroiled in a serious conflict, it’s probably not a dispute with the public over an article. Most likely it is with an advertiser, a vendor, a subscriber, or an irate employee. Such problems absolutely will arise. And when they’re serious, it’s important to diffuse the situation as quickly as possible. As a matter of policy, the magazine's top executive should promptly convince all parties of the publication's fairness, and, wherever possible, find a way to leave the complainants happy. It’s likely that you’ll want to do business with any of these parties in the future. Despite the publisher's best efforts, however, disputes can get ugly. The other party takes an impossible position and will not listen to reason (it's always the other party, of course). As anger escalates, somebody utters perhaps the ill-advised words; "I'll sue." Consider the Long Term Costs to Resolve a Dispute When a lawsuit threatens, the publisher still has several options, not all equally desirable. When a dispute gets out of hand, the publisher can either jump to the expensive alternatives, or attempt to minimize the costs one step at a time. The most common choices: Litigation. "Let the bastard sue," says the publisher. "I'm right and I'll prove it in court." Unfortunately, such bluster can be the costliest route to take. And in the end, an unjust award may be levied against the publisher—whether or the magazine was initially in the right. Arbitration. Today many publishers write a clause into contracts with vendors and employees requiring binding arbitration in case of disputes. In theory this saves most of the costs of a lawsuit. In practice, however, arbitration can bring results that could haunt both parties for years. Arbitrators follow neither the rules of evidence nor procedure, but their decisions in binding arbitration are as ironclad as those made by a judge and jury. Professional arbitrators are usually retired attorneys and judges. (But sometimes individuals with no clear qualifications to help others solve their business disputes get the assignment). No-choice arbitration can put all parties at a serious disadvantage. For an editor or an advertising salesperson, it may put a career in the hands of someone who has never worked a day as a salaried publication employee. The publisher, meanwhile, is putting the financial results of the dispute in the hands of somebody who knows nothing of the day-to-day realities of magazine publishing. How could a retired judge, for instance, know how publishers and printers have managed to work together for generations and what "the usual publishing and printing practices" are? Also, there is a growing—and alarming—body of evidence about fraudulent and unethical arbitration organizations. Not only do crooked arbitration firms exist, all too often they issue outlandish awards in favor of their frequent clients and secret business partners. In almost 100% of appeals of an arbitration award, the courts have refused to reverse or lower the arbitrator’s decision. Mediation. A growing number of magazine publishers are calling in an experienced publishing professional to act as mediator in their disputes. It is the least expensive option, and often can set things straight before either party can actually say "sue." Almost any problem can respond to deft handling by an experienced mediator. There's nothing binding or threatening in the process because the disputing parties are simply aided in finding their own solutions. If mediation works, everybody goes away with his pride intact and a reasonable solution to the problem. If it doesn't result in a signed agreement, at least the parties have lost no further respect for each other and have a clearer picture of what it will take to resolve the matter. If mediation fails, either arbitration or litigation could be the next step. So with mediation, both parties have everything to gain and nothing to lose. Mediation is an interesting process in that everybody is experienced in the procedures. They’ve been using it all their lives—at least since kindergarten. Sometimes mediation goes to work without the disputing parties’ realizing that a mediator has been brought in. Formal mediation, in which both parties agree to the process and the mediator, is the subject of this discussion. A clear benefit of mediation is the fact that neither party is cornered into making a decision. Unlike binding arbitration, which forces both parties to agree to the arbitrator’s decision before the process begins, mediation requires no contracts between the parties until everybody is in agreement. Call In the Mediator As Soon as There’s Conflict When should a magazine publisher call in a mediator? The Magazine Doctor says, "Don’t wait." Seek this help as soon as there’s the hint of a serious problem. One publisher with five leading trade magazines hates to fire anybody. So he routinely calls in The Magazine Doctor when an employee is to be maneuvered out of the company or fired. The precise assignment is called "outplacement"—helping the employee find a new job quickly. The magazine publisher offers all of the resources of The Magazine Doctor’s mediation, consulting and executive search operation in support of the departing employee. Mediation occurs at every step of the process, starting with the clear announcement to the employee that he or she is actually leaving the company by a certain date. Then he diffuses threats of a lawsuit over imagined wrongs. After giving the employee a sounding board for the initial anger, the mediator then helps the publisher package generous termination benefits. The publisher’s overriding concern, of course, is that a fired employee doesn’t sue or drag the publisher through layers of state or federal employee affairs complaints. The employee, meanwhile, wins because departure from the company is inevitable, but it occurs in the most upbeat and helpful manner possible. An important point: Mediators don’t take sides. They hear both parties’ complaints and try to clarify them as part of the solution. If either party is unwilling to seek a solution through some form of compromise, it won’t work and the mediator should resign. During the mediation period in our example, the mediator supplies the employee a sympathetic ear while redirecting the anger to positive accomplishments during a very stressful period. The mediator will likely help the employee gain one or more concessions from the employer concerning severance pay, use of office facilities or resources during the job search, the quality of references, etc. Any outplacement procedure that results in the employee’s successful job hunt, while avoiding a lawsuit or official complaint against the firing employer, is a great investment. And 90 percent of the job is mediation—helping both sides reach mutually beneficial agreements in a civil atmosphere. In the case of a fired employee, would mediation without a formal outplacement work? The Magazine Doctor says, "It often does. But it’s hard for an employer to appear concerned for the employee’s needs if the worker is merely abandoned with termination pay." Mediation Works Because The Parties Want It To To weigh the real value of mediation in any business dispute, consider: Mediation depends on the good will of both parties. It is neither appropriate nor likely to have much value if either party is committing some degree of fraud against the other. Mediation is an excellent tool, however, when dealing with parties of good faith. The mediation process starts with the dispute and continues until the parties sign an agreement. It is their decision when to agree—nobody else’s. Mediation saves money. A mediator’s fee in day increments, plus expenses, is much lower than fees charged by arbitrators and lawyers. One party usually pays the mediator’s fee, although in a dispute between a magazine and a vendor, the two might agree to split the bill at the beginning of the process. Mediation saves time. After an initial meeting between the two parties, many (perhaps even all) of the subsequent activities by the mediator can be carried out by phone, fax or e-mail. For more information on mediation as a solution to magazine publishing problems, call or e-mail The Magazine Doctor.

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