Conflict is uncommon within close-knit private practice teams – but if personality clashes do occur and are left to fester, then they invariably have a damaging ripple effect on morale, performance and patient care. And they can even exert a financial toll on your business. Mike Hill shows how mediation can resolve workplace disputes
Perhaps the rarity of workplace disputes actually makes it harder for private doctors to know how to respond appropriately.
With little experience of managing conflict resolution, and unable to seek advice from the HR department, many lack the confidence to get involved for fear of making matters worse.
As a result, opportunities for dealing with disputes are missed: conflicts are either ignored in the hope they will fade away or formal grievance procedures are initiated straight away, without attempting any informal reconciliation.
These approaches can further undermine relationships to the extent that employees try to avoid working with each other, causing operational difficulties which then have an adverse impact on patient care.
And should one of the parties decide to leave the practice, there is still a real risk they could take their case to an employment tribunal. In addition to the reputational damage of a lengthy tribunal case, the cost to your business in legal fees, compensation and a financial penalty could be severe.
This is a shame, because most workplace disputes can be resolved informally, if you intervene quickly, an approach which is advocated by the Government.
Under the Enterprise and Regulatory Reform Act 2013, anyone who wants to lodge an employment tribunal claim is obliged to notify the Arbitration, Conciliation and Advisory Service (ACAS) first, who will offer to conciliate between both sides to resolve the dispute out of court.
However, ACAS itself stresses that the best option is for employees and employers to try and resolve their differences as early as possible.
This is where mediation can make a difference.
The principles and practice of mediation
Mediation is a type of alternative dispute resolution (ADR) in which an impartial third party sits down with two or more individuals to discuss the problem and find a solution that is acceptable to all concerned.
Unlike conciliation, which is employed when a dispute has reached the tribunal stage, mediation can be used as an early stage. And, in contrast to arbitration, it is relatively informal and the parties are not legally bound by the decision of the third party. Rather, the emphasis is on reaching a voluntary agreement.
Participation in mediation is voluntary, but, before they can give informed consent, people need to understand the process and the principle of confidentiality. Meetings are not recorded, but if the mediation is successful, a written plan of action is signed by all parties and, with their agreement, this will be fed back to the employer.
The fictional case scenario described in the box on the right sets out how the process works in practice, from initial conversations to joint meeting and follow-up.
The mediation route
For the last ten years, I have worked as a mediator within commercial and health organisations, helping to resolve disputes which range from accusations of bullying behaviour and derogatory comments to clashes over operational matters and perceived professional slights.
In my experience, both sides in workplace disputes feel genuinely aggrieved that they have been wronged or misunderstood in some way and feel the other person is poles apart from them.
However, that is rarely the case. For example, both want the best for patients and often recognise the destructive impact of their dispute on colleagues.
An added complication is that the parties have often stopped talking and mediation has been seen as a last-ditch alternative to formal grievance or disciplinary proceedings.
However, if positions are allowed to become entrenched, it becomes harder for each side to set their emotions aside and accept the need for discussion and compromise. The earlier that mediation – or any alternative dispute resolution – is tried, the greater the chance of re-establishing dialogue.
But I would not generally recommend mediation if one or both parties are unable to conduct themselves professionally – for example, shouting, swearing and ignoring the other person. Nor should it be ever used to solve problems that have to be formally investigated, such as allegations of harassment or discrimination.
Another misconception is that mediation is a ‘soft, fluffy’ option. In fact, many participants are surprised by how demanding it can be.
For example, they are expected to sit down with and listen to the person’s point of view and they may be challenged by the mediator if they behave inappropriately or contradict themselves.
One mediation session is often all it takes to resolve a dispute, but if agreement is within sight, the mediator might continue for as long as it takes. Most reputable mediators will also follow up some time later to check participants are keeping their side of the bargain.
Finding a mediator
Mediation has long been an option for private sector companies and organisations in the public sector, with some even recruiting and training their own cadre of internal mediators from among their employees.
An ACAS guide to workplace mediation published in 2013, includes case study material from a housing association, West Midlands Police, a marketing agency and Salisbury Cathedral among others. And, while not yet mainstream in healthcare settings, a number of NHS trusts now offer mediation as an informal option for resolving disputes, as well as helping to avoid costly grievance proceedings or employment tribunals.
The ACAS guide includes general advice on finding an external mediator. Usually, only one is needed.
However, given the number of mediation providers available, I would advise independent practices to request evidence of their training, commercial experience and ensure they have a strong track-record in the health sector.
Ideally, your chosen mediator will also be a member of one of the organisations set up to provide training, accreditation and set standards; for example, the Civil Mediation Council, the Law Society’s Civil and Commercial Mediation Accreditation Scheme, and the College of Mediators.
These organisations can provide details of suitable mediators on request.
Do bear in mind that the success of mediation depends on the strength of personal relationships.
While mediators should have good interpersonal and communication skills and be diplomatic, participants should feel comfortable with the mediator, recognise their independence and be ready to work with him or her.
Cheaper than lawyers
It is rare, but if this professional rapport cannot be established, you may need to find another mediator to ensure the process stays on track.
As an independent practitioner, it is unlikely you will have to deal with workplace conflict very often, but given how destructive such disputes can be, you owe it to yourself to be prepared.
While mediation may not be the answer in every case, it is considerably cheaper than instructing a lawyer. Most importantly, it is a great way to initiate a conversation when communication has broken down.
Mike Hill (right) has been a mediator for ten years. He has a background in healthcare and was head of management and staff development for a large NHS teaching hospital in Yorkshire. In addition to being a director of the Human Connection, a professional development company, Mike works with M.J. Roddis Associates, providing mediation services for doctors in the NHS and private sector