Amazon vs. Hachette, Power, and Mediation

I am finally weighing in on the Amazon/Hachette dispute. For those people who may not know, the basic issue is that Amazon is unhappy with the (lack of) money it makes on the sale of Hachette titles, and is refusing to accept pre-orders on Hachette forthcoming titles, while also delaying shipment on existing titles by several weeks. It has also suggested that customers purchase other book instead of the unavailable Hachette title. It is now using the same strategy with Disney movies.

Disclaimers: I am not published by Hachette in the US, although the UK version of Moth and Spark is published by Headline, which is a Hachette imprint. Nevertheless, I signed the Authors United letter which was published in the New York Times.

I do not know what is fair as far as the business end of the dispute goes. Maybe Amazon has a point. Maybe Hachette is in the right. In all likelihood, they are each right on some issues and wrong on others. Nor am I going to get into the Amazon is good for writers or Amazon is terrible for writers dispute (which is often linked with self-publishing issues, and I’m not going there either).

I signed the letter because triangulation is a sleazy thing to do, and that’s what Amazon is doing by punishing authors for its disagreement with Hachette. It’s like taking away your child’s allowance because your co-parent disagrees with you on when bedtime should be. It’s bad when it happens in families, and it’s not supposed to happen in business either. Amazon is in essence taking hostages by reducing sales of Hachette books and trying to use that as leverage to get Hachette to cave. I don’t expect the letter to solve anything either, but I did want to go on the record as against unethical business practices.

What’s really going on, of course, is that the dispute is not about how much of a cut on e-books is fair. It may have started this way, but it has now devolved to a dispute about power. Amazon wants to claim power that is traditionally held by publishing companies; Hachette, unsurprisingly, wants to retain its power.

And once a dispute becomes about a core issue such as power, becomes in effect personal, it becomes a hell of a lot harder to settle. Both sides dig in because something fundamental to their existence is threatened. When humans do this, pride and fear and self-worth all get involved. It becomes hard to give up something even if you “know” the other side is right, because conceding means admitting weakness and losing face. Compromise looks like defeat. Small hills turn into mountain ranges. Amazon and Hachette are not humans, but they are run by humans. Even if Jeff Bezos wakes up at 3 a.m. and tosses and turns about how he’s treating writers, he can’t back down now. That might make him back down the next time, and the next time, and the next . . . .

One of the best ways to solve these issues with human beings is through mediation. Mediation is not arbitration. An arbitrator will decide for one side or the other. It’s win or lose with arbitration. A mediator, on the other hand, will negotiate a settlement that is good for both sides. Often all that one side really wants is to feel heard and be given an apology.

As part of the mediation course I took in law school, I was required to observe an actual mediation. The mediation I observed was a court-ordered mediation regarding a child-support dispute and how much the non-custodial party should be paying to the custodial party. The mediator and I started by listening to one side’s position. It seemed justified and reasonable. Then we switched rooms and heard the other side’s position. It too seemed justified and reasonable. Then we got the two parties into the same room and got them talking to each other. By the end of the two mandatory hours of mediation, it was obvious to both me and the mediator that what was at issue was not how much money was paid by whom to take care of the child; the issue was about each party’s relationship with the child and the deeper kinds of care she needed. Each side was genuinely concerned about the child’s well-being. Each was afraid of losing her to the other party. Both sides cried. The party asking for more money would have been happy with a lot less than asked for if they could have received assurances that they weren’t going to lose either the child’s love or the chance to love her.

Because of a procedural oddity in the case and the stakes the lawyers had in it, the mediation ended after the mandatory period, still unresolved. But in just two hours both sides had moved considerably closer to a settlement, and one probably would have been achieved had the mediation been allowed to continue to its natural conclusion.

To solve this dispute, Amazon and Hachette need to go to mediation. Getting the transactional lawyers together to hammer out a contract has not worked, and pitting litigators at each other is not really going to solve anything now, because the issue isn’t a legal one. It’s a personal, existential issue about the survival of the two companies. The CEOs of the two companies (not their subordinates, not their lawyers) need to be locked together with an experienced mediator for however long it takes for them to be able to hear each other’s fears and figure out a way to make the pie bigger for everyone: publisher, distributor, author, and reader.