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Five steps to mediating a practice dispute

Dr Stephen Bassett offers a quick guide to negotiating staff or partnership conflicts

As GPs, we pride ourselves on our ability to manage uncertainty, tolerate ambiguity, and think creatively. In so doing, we provide a risk sump without which the NHS would have already collapsed. The same strengths are also the keys to achieving conflict control, but because we are not always effective or efficient at translating and transferring skills from our clinical practice to other domains in life, we often need some pointers on applying existing knowledge, skills and attitudes to common GP conflicts.

In my experience both as a partner and a sessional GP, the common conflicts are:

  • between partners
  • partners and sessional doctors
  • partners and administrative staff
  • situations where a GP supports a colleague, for example a practice nurse or receptionist, in a patient-initiated complaint.

Think of how we negotiate a patient’s attendance at surgery instead of a home visit, agree a delayed script, break bad news, arrange a Do Not Attempt CPR document, establish rapport with heartsinks, explain cardiovascular risk or counsel on PSA screening, all of which are complex communications and negotiations.

Doctors don’t like conflict and we are not trained to deal with it. Patients want the caring cavalry, simultaneously empathetic and omnipotent, and this can train us to behave similarly outside of our medical
work.

The approach I take to conflict control uses techniques that fall under the large, slightly flower power-patterned umbrella of alternative dispute resolution (ADR). ADR is potentially faster, cheaper and better than litigation for most disputes – and the judiciary is keen on it.

Before thinking about resolving a dispute, ask yourself if you’re actually in one. If not, it’s always worth considering just walking away or apologising. Compromise, apology and forgiveness are options.  The evidence suggests apologies for medical mistakes reduce litigation, and unequivocally shows that an apology almost always reduces stress. It is now clear that an apology is not an admission of liability.1

Here are five steps to mediating a dispute. At all stages reflect, review, reframe, regroup and reconsider.

1 Cool off

As GPs we are used to using ‘watchful waiting’ or ‘optimistic observation’ with self-limiting clinical problems, where, for example in the management of uncomplicated fever in children, the evidence increasingly favours therapeutic minimalism and the doctor as drug. Such masterful inactivity can be deployed with potential or actual disputes.

In my ADR training sessions, I encourage out-of-hours doctors to give patients an hour to telephone family and friends to arrange transport to an out-of-hours centre, rather than feeling forced to agree or decline a visit request under pressure. This allows time for reflection and cooling off, avoids later confrontation or complaint, and often solves the transport problem.

When we enter emotionally charged conversations, such as encounters with demanding or heartsink patients, the most creative and flexible bits of our brains are at risk of disengaging. Recent psychology recasts this classic fright-flight-fight response as flight-fight-freeze-and-appease. Take time to cool off from reactive situations.

2 Gather information

After collecting your thoughts, gather and organise the evidence you need. Be dispassionate and avoid ‘blaming, naming and claiming’.

Instead try taming the information – organising any papers chronologically and adding reference documents such as model contracts, partnership agreements, invoices and receipts – and framing it by charting a timeline of events. Again, under stress, it’s reassuring to have information readily to hand and a structure to your narrative of events.

Clarify what the dispute is about. Mediators probe clients to find out what drives a dispute. GPs will be familiar with the Johari window and ‘unknown unknowns’. Reflect on potential personality clashes. Productive negotiation is not horse-trading or haggling – termed positional bargaining – but finding out how to create as many options and outcomes as possible and then how to allocate these to the maximum satisfaction of all the parties.

What do you really want? Run SWOT and Johari analyses to look for hidden options and opportunities that advance your real priorities.

For example, instead of a partner negotiating dropping a session, he may wish to negotiate working from home for a session, where he could remotely deal with paperwork and administration. In return for more time for CCG involvement, part of realising managerial aspirations and potential, a salaried GP could take a lead on significant event audits, and tick a revalidation box at the same time.

Know what your ideal outcome would look like. Mediators use the technique of the ‘yes’ question: design a question which leads to a guaranteed affirmative answer, such as: ‘Would you like to see this dispute over if an agreement could be reached?’.

Assess the relative strengths of your case and the other party’s case. Use an easily available risk-analysis matrix to categorise your dispute as ‘easy’ or ‘hard’ – if it’s too hard for you to deal with in the practice, seek help from a third party such as another partner or practice manager, someone at the LMC or a lawyer.

Remember this is an iterative process, like an audit spiral, and you will need to reframe and reconsider as new information becomes available, sometimes only after meeting the other party.  All this reflection makes great material for your revalidation folder, and you might actually learn some surprising things about yourself.

3 Hold face-to-face meetings

Non-trivial partnership and staffing disputes can’t be dealt with by letter, email or text. We recognise that face-to-face encounters are the most productive in clinical practice, because they provide crucial non-verbal as well as verbal data.

The same applies to negotiations. Get the practical details right, eliminating as many collateral sources of stress as possible. Emotionally charged meetings should be held in neutral territory to constrain mammalian territorial responses. 

Arrange a neutral space, for example at LMC or CCG offices. Postgraduate centres such as deaneries may help, and many local community organisations have lists of spaces available for conflict resolution.

If a neutral chairperson is available, use one. LMCs and PCOs can help here and even if a conflict of interest prevents their direct involvement, they often have a list of third party providers.

4 Reach an agreement

Make sure that the person with whom you are dealing has the authority to settle the dispute. Mediations and negotiations often fail just when an agreement is about to be reached because one party has to confirm the agreement with a superior. In an employment dispute, for example, the practice manager may need to refer back decisions to the partners, in which case, a partner needs to be in the room.

One of the most valuable lessons I have learnt is that the idea of ‘having one’s day in court’ is a dangerous fantasy. In negotiation or mediation, the parties are in control. Once litigation begins, you cede that control to lawyers.

If you end up in court, giving evidence is a highly structured process – structured by others – and rarely allows you to get your point across. Cross-examination can be devastatingly disempowering. You will have so much more ownership of an agreement reached through ADR.

One of the strengths of a mediator is their ability to provide reality testing by being a devil’s advocate; the iterative questioning of the parties, separately and privately in what are called caucuses, helps them realise their mutual interests.

There is a DIY approach to this, developed from Gestalt therapy. Arrange two facing chairs, sit in one, imagine the other party’s best arguments against your case, and deliver them aloud. Physically swap chairs and defend your position.

This exposes your weaknesses and allows you time and space free of face-to-face stress to strengthen your position. (If you do this in a public building, do draw the blinds!)

5 Review implementation

Without good implementation of the agreement, not only will little be achieved but the seeds of a new conflict will germinate. Draw up an action plan for parties involved in the conflict and create tasks, making sure each one is specific, measurable, attainable, relevant and timely. Set a timescale and meet to review task outcomes.  Unlike conflicts with patients, against the costs of which you are indemnified by your medical defence body, in a non-clinical partnership or employment dispute, it’s your money, or more likely the bank’s, with your house as security.

Dr Stephen Bassett is deputy chair of the BMA’s sessional GP subcommittee and a GP in Swansea. He is a former GP partner.

Reference

1 Section 2 Compensation Act 2006 (c. 29) stipulates that, in the event of an accident, an apology or offer or redress is not, of itself an admission of liability – a view fully endorsed by medical defence organisations.

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