Mediation? Now you’re talking

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…and not only that, your organisation will be saving money, too. David Liddle explains why mediation is an effective way to handle the strains of change.

Findings from a survey by The TCM Group and NHS Employers suggest that workplace disputes within the NHS, like so many other sectors, are damaging, destructive and a significant distraction at times of major change and transformation.

With such a negative impact, it comes as no surprise that NHS leaders are seeking alternatives to traditional grievance processes which, according to many health professionals, are inherently adversarial and fail to bring disputes to a satisfactory resolution in the majority of cases. It seems that many trusts feel enough is enough and are turning to mediation.

Mediation is gaining in both popularity and credibility within the healthcare sector. Of the 122 trusts which responded to the survey, 83 per cent are already using mediation to resolve workplace disputes, with 87 per cent of those trusts reporting a significant reduction in the number of grievances. Forty-three per cent of trusts reported a fall in the number of employment tribunals - directly attributable to introducing a mediation scheme.

Evidence from the survey suggests that NHS trusts are using mediation to secure positive outcomes within an increasingly complex and challenging range of conflicts and change processes. Gill Bellord, head of employee relations at NHS Employers, is enthusiastic about the role of mediation.

“NHS Employers supports the increased use of mediation in the NHS as an effective means of resolving complaints, managing change and handling workplace disputes. There are benefits in terms of outcomes, maintaining on-going relationships and value for money.”

Mediation can be defined as a non-adversarial process of dispute resolution during which an impartial third party helps the two or more parties have an open and honest conversation and identify an outcome which is mutually acceptable. The mediator does not propose solutions, they do not make judgments about who is right or wrong and they do not assess culpability or blame.

Mediators may be trained internal mediators or external mediators. Most practising mediators in the UK are members of the Professional Mediators’ Association and subscribe to the PMA’s code of conduct and professional standards.

Training internal mediators and establishing mediation schemes are emerging as the most popular and effective approaches for embedding mediation. The reasons for setting up an internal mediation scheme can range from concerns about the cost of grievances and litigation to reducing stress.

Angie Gaspar, head of the employee counselling and stress management service at Imperial Hospitals Trust, explains that before setting up their mediation scheme, 70 per cent of referrals to the employee counselling and stress management service resulted from relationship breakdowns.

Imperial is not alone in this. At Northumbria Healthcare Foundation Trust, consultant clinical psychologist in occupational health Teresa Jennings says they were receiving significant numbers of referrals coming into the occupational health service relating to relationship problems at work. Their annual staff survey identified bullying and harassment as a problem for some staff.

Another rationale for introducing a mediation scheme, explains Ms Jennings, is that the stress management standards set down by the Health and Safety Executive highlighted that organisations should have in place systems for dealing with conflict, bullying and harassment at work.

Based on the evidence of such a negative and costly impact of conflict, trusts such as those at Northumbria and Imperial opted to set up an internal mediation scheme. At Norfolk and Suffolk Foundation Trust, senior human resources business partner Gemma Dullea says the trust has benefited greatly from adopting mediation.

“We are seeing speedy resolutions at the earliest stage possible,” says Ms Dullea. “The impact has been significant - a reduction in management, HR, unions and individuals’ time as well as the resolution of issues in a cost-effective manner.

“Successful mediations result in an agreement that supports employees to confidently work together in the future and to ensure they have productive working relationships where problems can be solved jointly.”

For many trusts, it is still early days and more needs to be done to fully evaluate the impact of mediation. However, the outcomes being reported from mediation are impressive and, according to Ms Gaspar, mediation can produce very creative solutions to systemic problems by engaging everyone - this often generates new learning for the individuals and the entire team.

Mediation is not just being favoured by those who operate within a therapeutic or human resources environment. Increasing numbers of legal professionals are supporting mediation within the NHS.

Gemma Brown, an employment solicitor at specialist public services law firm TPP Law, is one of them.

“Typically, there are a number of stakeholders involved in a dispute involving an NHS trust. As a consequence of this, legal costs can escalate dramatically. I believe NHS trusts would be wise to explore the possibility of mediation in resolving a dispute both at the outset and throughout the matter as this may prove to be an effective way of resolving differences and as such keeping costs to a minimum.”

Managing conflict

Northumbria Healthcare Trust has quantified the savings. Ms Jennings says the trust calculated that the costs of a basic grievance process are around £1,800. This figure, she adds, is an underestimate and does not include the broader costs such as effect on individuals and time lost due to stress or effects on team productivity.

In comparison, the cost, on average, of mediation when delivered by an in-house mediators is estimated as £520.

Evidence suggests mediation is being used in issues ranging from resolution of disputes between colleagues to management of conflict between healthcare professionals, patients and their families. Indeed, according to Angie Gaspar and Teresa Jennings, mediation is being used to handle the fallout from change processes and to support performance management procedures.

Ms Gaspar says that mediation often comes about because of change processes, for example re-organisations, the merger of services and staff. Team disputes are usually complex in nature and require a bespoke design for resolution. Early indications are that mediation is increasingly being used to resolve patient complaints and within the structures underpinning the emerging commissioning arrangements.

Sarah Barclay, founder of the Medical Mediation Foundation, specialises in resolving conflicts arising from the care of seriously ill children. Ms Barclay argues that medical advances lead to more complex medical decision making for health professionals, patients and patients. This complexity gives greater scope for conflicts and disagreements.

The impact on everyone says Ms Barclay can be damaging - emotionally and clinically. Offering health professionals and parents the “safety net” of mediation has been welcomed by doctors, nurses and parents alike, with all parties agreeing that the focus of attention should be providing the best care for the child as opposed to entrenchment in conflict.

The extensive benefits of mediation are only just starting to become clear and more needs to be done to explore the role, the impact and the costs associated with mediation. However, reduced time spent dealing with grievances and litigation, reduced costs, reduced stress and increasing levels of wellbeing, engagement and productivity are major contributors to a modern and successful NHS.

David Liddle is founder and chief executive of the TCM Group and president of the Professional Mediators’ Association.