How mediation can help GPs in dispute

Disputes in GP Practices; they are expensive, time consuming and, in the extreme, have the potential to present an existential threat. When differences arise, is the cure a protracted legal battle — or does mediation offer GPs the opportunity to heal themselves?

Having regularly acted for GPs over some years, I can attest to the fact that, as a group, they tend to be intelligent, motivated and independent thinkers. Historically they tend to run their medical businesses in relatively small practices. Although there is now more of a trend towards corporate vehicles, typically GPs have established their practices as partnerships and limited liability partnerships (LLPs). Both of these business vehicles permit key people to have a real sense of ownership and control.

The job itself requires years of training and hard work and is made more difficult by an ever-increasing professional regulatory burden. That can create stress which, coupled with the drive to be commercially successful, can make for fractious behaviour. Stressed, competitive, intellectuals — in charge and in business together — is fertile ground for disputes.

The two main kinds of disputes that we see are:

1. Disputes with practice employees.  Of course, those kinds of dispute arise in every business but it may be fair to say that they are more common in GPs practices than elsewhere.  Busy doctors with targets to meet, dealing with serious issues, can and do expect their staff to provide support and can, in some instances, become irritated and discourteous.  That’s not to say that practice employees can’t themselves be the source of any issues — a casual approach or lack of resilience can create another range of issues in a role that often includes dealing with unwell and unhappy members of the public.  Suffice to say, it’s an environment in which difficulties in personal relationships can proliferate.
2. Disputes between the partners.  How responsibilities should be shared, ego, working schedules, financial reward and challenges to professional competence and compliance can all create a perfect storm of conditions for relations between partners in GP practices to deteriorate.  To this is added four further factors:

   • The fact that many GPs practices have inadequate arrangements in place to regulate how their partnerships should operate.  A well drafted partnership agreement can head off a plethora of problems — preventing deadlock and permitting an orderly running of the business. Even when a GP practice is well regulated by an agreement which sets out the businesses constitution properly there will still be scope for personal differences to arise. When it's not properly regulated, those problems begin to accumulate.

   • The practice’s contract with the NHS may play an important part in the dynamic. In the past, NHS contracts have mostly been in the name of the partnership.  That’s fine unless, as a consequence of the partnership being a traditional (non LLP) partnership which has a badly drafted partnership agreement or, worse, (shudder) having no agreement at all it may be possible, under the Partnership Act 1890, for any partner to bring the partnership to an immediate end.  That may call into question the continued right of the former partners to operate, at all.

   • The right of individuals to be provided with copies of all personal data held on them by the practice — as a Data Subject Access Request (DSAR).  That can include personal emails and messages between everyone at the practice, including partners and employees. Often written without any appreciation of the likelihood that they will be called for, by the person about whom they are written, such material can be very damaging to relationships and legal positions. If a dispute of any kind arises at a GP’s practice, a DSAR is likely to be made by an aggrieved party and almost always creates problems.

   • The fact that everyone at the practice, including partners, is protected against discriminatory behaviour (including in relation to their age, race and sex) and may be able to bring a claim for discriminatory behaviour in the Employment Tribunal which is, effectively, a public forum.

Whatever the scenario, the scope for disputes of one kind or another is significant and few practices have not experienced what that can mean — pressure rising in the stress crucibles that is a GP’s practice.

Where do these disputes end up?  If unresolved between the parties they end up in the Employment Tribunal, the Court or in an arbitration which, although private, consumes time, energy and money like they were going out of style.

What is mediation?

Mediation is a form of Alternative Dispute Resolution (ADR), and one of the most popular and effective methods of resolving matters through negotiation. It is particularly attractive where the alternative for individuals and businesses will be complex and potentially costly disputes — see above. The objective is for the parties to reach a mutual agreement with the assistance of a neutral third party, the mediator, who guides their negotiations. The mediator facilitates the resolution of the parties’ differences by seeking to understand and focus their attention on their needs and interests and by exploring the alternatives to a protracted dispute.

Mediation is a confidential process which takes place on the basis that what is communicated between the parties at the mediation is also “without prejudice.”  That means that what is said at a mediation cannot be relied on or referred to outside that process without the parties’ agreement. This gives the parties the opportunity to speak openly and, when assisted by a mediator, the process can be extremely effective. Typically, more than 80-90% of mediations result in a settlement.

I have participated in many mediations. They regularly unlock the differences between parties in disputes and can bring unwanted conflicts to an end — even where that seemed to be almost impossible, before the process started. Mediation can also occur before a dispute has taken off formally, hugely reducing the cost of a client’s legal spend.

Advantages to mediating

These are many:

• Mediation is confidential and fast, with meetings tailored around the parties’ schedules. It can take place in person or virtually.
• The process is cost effective, very significantly less expensive than a protracted dispute. If settlement is reached, the cost of the dispute can be brought to an end immediately.
• The parties maintain control, with the mediator providing support to help them evaluate what makes the most sense to them. Resolution is only reached on the basis of what is acceptable to the parties — decisions are not imposed on them by a judge, arbitrator or tribunal.
• The process is creative. This allows bespoke and innovative solutions to be found, suited to the needs of each individual case.
• Mediation offers the parties certainty about the future, not only capping costs but also putting everyone in a position where the uncertainty of a continued dispute is avoided.
• The process may also help the parties to repair relationships and can form the basis for future cooperation.

In my experience, mediation is particularly useful in disputes between GPs in partnership and between GPs and their employees, in workplace disputes. The involvement of a neutral third party adds an extra element and can make those involved in a dispute look at matters with a fresh perspective. That can involve individuals recognising that, when other become involved in their issues, standards of behaviour (including their own behaviour) may need to be reevaluated.

The way in which a mediator is able to convey information and strength of feeling, whilst filtering out personal behaviour and bias, is also extremely useful.

For all these reasons we are seeing mediation being utilised in GPs practices more frequently — with success. Mediation (particularly at an early stage) is almost always worth considering, whenever disputes arise.