Mediation Within the NHS in Scotland Linda Paterson

MEDIATION WITHIN THE NHS IN SCOTLAND

By Linda Paterson, The Mediation Partnership

The use of mediation within the NHS in Scotland is proving to be a slow burn. The Patients Rights (Scotland) Act 2011 sets out the requirement on NHS Boards to consider and make provision for alternative dispute resolution, such as mediation, to resolve complaints. However, there is still minimal use of this option. A review of a six-month mediation pilot involving five NHS Boards in conjunction with the Scottish Mediation Network (the umbrella organisation responsible for quality standards and promoting mediation in Scotland) concluded that learning from the pilot was limited due to the very few referrals made during the period. So why this lack of uptake? Anyone with experience of either working for, or using the services of, the NHS would probably agree that this is not due to a lack of disputes. Given the high stress of the kind of situations which are commonplace in healthcare environments – such as demanding patients and time pressures for employees, and pain, fear and overstretched staff for patients, the opportunities for conflict are rife.

Mediation has an impressive track record in resolving conflicts in many areas, such as family breakdowns, neighbour and community conflicts, workplace and

commercial disputes. The generally cited success rate is usually between 80-90%, and through my many years of mediating various disputes this figure has been remarkably consistent. So what is preventing mediation from being used more frequently within the NHS? There are probably a few reasons behind this. The NHS as an organisation has only very recently considered using mediation in any systematic way – and, as with any new initiative, it can take time to embed. Often people do not have a full understanding of mediation and what it entails, making them unsurprisingly wary about signing up for it. People are often unclear about how it fits with other policies and procedures. It is often seen as a last resort, rather than an opportunity to nip a potentially damaging dispute (both on a personal and organisational level) in the bud before it escalates.

Often people aren’t even aware that mediation may be an option, and, feeling that there is no other alternative available to them, go straight to more formal proceedings. Once formal proceedings have started, which by their very nature are adversarial, disputes frequently escalate and positions become more entrenched. If these escalate to the level of legal proceedings they can be lengthy, hugely stressful and extreme costly to all concerned, sometimes leading to huge legal fees for the NHS. Sometimes internal gatekeepers lack a full understanding of the potential of mediation, and as a result place such restrictive criteria on referrals that very few cases make it through to a mediator. Where internal mediation teams exist, there may be reluctance by inexperienced mediators to take on cases which are seen as particularly challenging. Even if mediation is offered, many people are understandably apprehensive about sitting down with the person, or representative of the organisation, that they are in conflict with. If they do not receive the necessary information and support at this stage of the process, they are not in a position to make a fully informed choice and are unlikely to pursue the option of mediation. So is it worth continuing to try to establish mediation as an integral part of NHS procedures? I would argue that the answer to this is definitely yes. With mediation’s proven track record it has the potential to save the NHS thousands of pounds if used appropriately and effectively. Not to mention exponentially lessening the stress on both staff and patients involved in disputes. So can anything else be done to achieve this? The inclusion of mediation within the 2011 legislation is hugely important, as it legitimises it as a recognised form of dispute resolution. However, this alone is not enough to increase the use of mediation. It requires a culture shift, which can only be achieved through on-going awareness raising and promotion of the values of mediation.

In my experience, the key to increasing the use of mediation is to appoint a dedicated mediation co-ordinator or champion (usually in conjunction with another complementary role), ideally within each NHS establishment. This would preferably be someone who is trained in mediation, or at a minimum has a full understanding of how it works and is passionate about its potential. Finally, the culture change required to grow mediation is far more likely to be achieved if people from within the NHS, or with a background in healthcare, are selling the product. Although mediation skills are generic and can be applied in conflict situations in all areas, it is an aspect of human nature that we are more likely to listen to, and take seriously, people whom we feel have a thorough understanding of the types of disputes we are dealing with. Increasing the use of mediation within NHS Scotland will be a challenge. However, given the numerous other issues being faced by the NHS at the current time, I would argue it’s a challenge it cannot afford to ignore. The Mediation Partnership is an independent company whose partners, Aileen Riddell and Linda Paterson, are both accredited mediators with many years of mediation experience. They specialise in providing workplace mediation services and Scottish Mediation Network (SMN) Accredited training for mediators. enquiries@mediationpartnership.co.uk