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The Application of Mediation Skills and Principles to Selected Investigations

by Will Parkes
June 2017 Will Parkes

INTRODUCTION

My involvement in formal workplace investigations concerning interpersonal conflicts has always left me with the feeling that there must be a better way of dealing with these matters. Whilst the circumstances in some cases necessitates formal investigation, I believe that the majority of workplace conflicts could be dealt with more effectively using less formal processes. About 15 years ago I ‘discovered’ mediation and realised that this could be the answer.

During my practice as a Workplace Mediator I began to wonder how much mediation style communications could be applied to formal investigations without detracting from the formality that many feel necessary for the investigation to have acceptance and credibility. Given the general reluctance for many organisations to accept mediation as an effective form of dispute resolution, this could be very useful.

I am aware that there is some controversy and confusion surrounding the word ‘mediation’ and have used this term to support a set of communication skills and procedures that are generally accepted by the majority of Workplace Mediators.

Does an investigation always have to be seen as us and them? If its purpose is to find out the truth, might it not be easier to get to the truth by being ‘nicer’ and by establishing a rapport more conducive to  cooperation?

Could it possible to use a blend of Mediation and Investigation skills within a formal process?

Could Medigation (pronounced ‘ meedegation’) be the way forward? (The word combination does not work well the other way around)

With this in mind I was delighted when I was recently asked by the General Medical Council (GMC), to provide a communications workshop for Case Examiners who deal with doctors who are under investigation. This was a pilot to investigate the benefits of introducing interim doctors meetings prior to making a final decision on whether the case should be sent for a Fitness to Practice Hearing. It seemed that this would be the ideal opportunity to gain further information on the use of formal communication procedures.

 

BACKGROUND TO THE GMC PROJECT

At the end of 2012 the GMC set up a pilot project of meetings with doctors under investigation, prior to making decisions on sending to Fitness to Practice Panel. The purpose was to test whether these ‘interim’ meetings would aid the GMC to better understand the seriousness of the case by facilitating the sharing of information on a one to one basis between the Doctor and the GMC and in doing so, to determine the most appropriate course of action to protect patients most effectively and efficiently.

It was felt that information was being provided at Hearings that, had it been known earlier on in the process, may  have allowed the case to be dealt with locally. These meetings allowed the Doctor the opportunity to explain why the alleged concern may not be as serious as might otherwise appear, including why it might not be sufficiently serious to justify referral to a Hearing.

 Following some initial concern by some of the doctor’s legal representatives, a video of a ‘Mock Doctors Meeting’ was produced using GMC staff, the Independent Facilitator and a professional actor. This clearly demonstrated how the meetings would be conducted allaying some of the initial concerns of the doctors’ legal representatives.

It was felt that the reluctance to divulge information at an earlier stage may have been due to the formality of the GMC’s investigation methods and the perception that the GMC was on the ‘other side’. The existing process was not conducive to developing a rapport that would allow those under investigation to provide the more detailed information that could allow the Case Examiners to determine that the situation was not as serious as first thought, and possible deal with it locally.

It was felt that with suitable training, Case Examiners (CE), could adopt an approach that while more supportive than the present system, would also allow the necessary formalities to be maintained. This could help the doctors to develop a different view of the GMC and the role of the CE.

The proposal was to introduce a pilot scheme of interim doctors meetings following the initial investigations, to encourage doctors to provide further information relating to the circumstances of the case.  Following this meeting the doctor would also have more information on how to respond to the allegations.

These meetings are referred to as ‘Doctors Meetings’ throughout this text.

 The panel for these meetings would be a Case Examiner, GMC Lawyer and Independent Facilitator.   The CE would be either a doctor or a senior member of the GMC Team. It was felt that this new approach to communications would allow the doctor to demonstrate a ‘human side’ of the case which was often not possible with the existing formalities.

All of the administrative arrangements including evaluation of this pilot were conducted via the GMC and my role was confined to developing and delivering the training and acting as an Independent Facilitator on the panel.

 It was agreed that the CE who would sit on these meetings would attend a 3 day workshop to help them develop a ‘less formal’ approach to obtaining information. The GMC also wanted to see if there would be benefit if an Independent Facilitator attended these meetings to support the new communication style and encourage a more open exchange of information. With this in mind a pilot study of 80 meetings was conducted with me attending half of them as an Independent Facilitator and the other half with the newly trained Case Examiners working on their own.

 

DEVELOPING THE COMMUNICATION WORKSHOPS FOR DOCTORS AND LAWYERS.

The key challenge in developing this workshop was to decide the ways in which the CE should communicate differently to their normal investigative approach and to develop a programme that would allow them to develop and practice these new communication skills.

As a mediator with past investigation experience in dealing with interpersonal conflict, I have always felt that formal investigation procedures were not conducive to encouraging full and open dialogue, in fact, in some cases they closed dialogue down completely. Whilst I understand that the nature of some investigations means that it may not be possible/appropriate to reduce formalities as they are essentially evidence gathering exercises, I have always wondered if a change in style may assist this process for both sides.

The purpose of the GMC investigation process is to gather evidence in relation to allegations that a doctor may not be fit to practice. This is, of course, a formal process enshrined in Medical Legislation. Unlike, perhaps, general criminal investigations, the process is not just designed to be punitive. (It may of course result in punitive measures being taken). Whilst the behaviour may be considered to be below the acceptable standard, an investigation may result in support to remedy the situation. The more that is known about the circumstances at an early stage, the earlier support can be offered if appropriate.

So, the challenge here is, can mediation techniques be incorporated in a formal process in a way that will encourage doctors to provide further details surrounding the circumstances without corrupting the process? In other words could ‘Medigation’ be the answer? Could certain investigations, or parts of investigations, be effectively carried out more effectively by being ‘less formal’?

My first thought was to consider the skills required to mediate effectively and the key principals of mediation, to attempt to apply them to the formal investigation. It seemed to me that whilst the overall investigation and adjudication process was traditionally formal, the proposed interim meetings could offer scope for the use of mediation style techniques. A process within a process? With this in mind I have considered a number mediation skills and principles.

 

To what extent can mediation principles and skills be applied to an investigation?

Confidentiality

The mediation process is sold as being confidential, with information only being disclosed with the agreement of both parties. Whilst Fitness to Practice hearings themselves are generally held in public, the processes leading up to this are usually confidential. So, where does this leave the status of the Doctors Meeting?

Given the reluctance for some doctors to provide wider details and to filter out information during the initial investigation, (often on their advisors recommendation), the offer of confidentiality at a Doctors Meeting would probably be very useful. However, given that this meeting is part of a formal process subject to fairly rigid regulation, this did not seem possible.

The purpose of encouraging a doctor to say more allows the CE to pass comment on whether it would be beneficial to the doctor to include this in his submission. This suggests a significant change in the way information is used as it could be viewed as advising the doctor on information that could support his case. Remember, the CE is not a prosecutor and is trying to see if further information could change views on how the case should proceed. In this meeting the CE is not only interested in the allegations but the circumstances leading to them, the effects on all concerned and even action taken to date, or proposed to be taken to re remedy the situation.

This seemed to me to be area where a skilful mediator could be of great help. Whilst detailed notes on the content of what is said in the meeting are not produced, a summary of what is discussed is produced and sent to the doctor. Doctors can use this information in their submission. For this to work a significant cultural shift was necessary. Doctors and their legal advisors may suspect that they are being urged to disclose matters that may not be to their benefit ---- thinking, perhaps:

Better to only discuss carefully filtered information and wait for the full hearing to ‘play their aces’!!!

This is exactly what the pilot meetings are trying to discourage – further information at this stage could prevent the case proceeding to a Hearing.

It was recognised early in the development process that traditional ways of dealing with these issues, vested interests and the general resistance to change, could be a significant obstacle.

Not surprisingly, doctors and especially their representatives were keen to know the status of these meetings and a statement was provided for them before the meeting.

To further address this issue discussions were held with doctor’s representatives and a video demonstrating how the process would work was produced.

It was anticipated that confidentiality and status of meetings would be a key issue but my belief was that whilst they would not be confidential in the same way as mediations, attendees would understand that this was not an ‘evidence gathering’ meeting and with appropriate communication, they could be encouraged to say more about the case.

During the Doctors Meeting it is made clear that whilst the purpose of the meeting is not to seek further evidence, if information arises that suggests the situation is more serious than first thought, this information could not be ignored. This was also provided in written form.

 

Willingness to participate

Attendance at meetings relating to investigations are not normally optional. An attendee may or may not be willing to attend for a number of different reasons, often related to their view of what the outcome may be. Some may argue that it is makes little difference whether a person wants to attend or not – they must.

Some also take the view that in general, a person who feels they are being made to do something against their will, may not be as open and cooperative as they could be.

Whilst a doctor under investigation would be expected to attend all relevant meetings, the Interim Meeting is different. Attendance at this meeting is voluntary and it is made clear that if they chose not to attend it will have not have an adverse effect on their case.

So, whilst the overall investigation process is not voluntary, attendance at the pilot meeting is. With this in mind it is possible that a person attending under these circumstances may be more willing to offer a fuller exchange of information and engage in the spirit of the meeting. Very helpful for a mediator.

There could well be a number of other reasons for attending or not, including location, availability and advice from legal representatives. The main issue here is that this part of the process is voluntary.

In mediation, of course, we talk about both parties being willing to engage. The other ‘party’ in this case the GMC, have different motives for attending as they are following a legal process. Are they attending ‘willingly’, in the same way as the other party?

Willingness to resolve the issues

This may seem obvious to those not familiar with mediation techniques, but others will know from experience that this is not always the case. Occasionally parties attend as they feel that it will be to their detriment if they don’t, or they may have their own motives and a hidden agenda for attending. Whilst this may not be supportive of the principles of mediation, getting the parties together in a room is an important step to helping them resolve their difficulties.

Resolving issues during an investigation is, of course, different to resolving issues in mediation.

In an investigation the issues to be resolved are around establishing and then evaluating evidence, with someone other than the parties making the final decision. Generally speaking evidence does not form a significant part of the mediation process and any decisions on how to resolve the difficulties are reached by the parties themselves.

In an investigation the person involved will usually want the resolution to be that they will ‘win’ the case and they will engage in the process in the way which they feel will best support this. (Often with advice). If they feel that attending the meeting will be to their advantage then they will probably attend.

Resolution within the party’s power

Whilst the way in which a person engages in the investigation process could affect the outcome, the actual resolution is made by a third party. However, looking again at the pilot meetings it would seem that the Doctor, if dealt with by an experienced facilitator, could have a significant effect on the overall outcome of the investigation.

Impartial facilitator

In a mediation the facilitator’s role is to support both parties equally to encourage participation and an open exchange of dialogue. Whilst this is also the role of the Independent Facilitator/CE, it is not surprising that there is scepticism from both doctors and their representatives over the CE role. However, this is also an issue that occurs during mediations and the effect can be minimised by a skilful facilitator.

Without prejudice

Mediation clients are told that the process is without prejudice and will not stop them taking other action if they are not satisfied with outcome of the mediation. Following the decision of an investigation, if the person is not happy with the decision the usual action is to appeal. It seems that this aspect of mediation would not be relevant to investigations.

Forward focused

Initial thoughts may suggest that an investigation is about gathering evidence in relation to past situations so cannot be forward focused. Whilst this is true, is it not possible that an investigation that treats those involved with respect and dignity and is generally recognised as fair, could be of future benefit to both organisations and individuals?

 

Listening Skills

Much has been written about how good listening skills can aid communications, so how can this differ in mediation /investigation?

In an investigation the listener is listening for facts and evidence that relate to the case in question.

A mediator may initially be interested in some facts but more importantly, is looking for the emotions, intentions and positions that are behind the ‘facts’. Whilst a mediation meeting is not primarily designed to be cathartic, mediators recognise that this may be the first time a party feels listened to and listening without interruption, can be rapport building and lead to a better exchange of information. This may be useful in the Doctors Meetings.

 My experience of ‘investigation listening’ is that if the speaker does not remain focused on the facts, the listener will interrupt to redirect the speaker. I am not suggesting that this is inappropriate but a mediator will deal with this differently by allowing the speaker to finish and acknowledge the importance of what was said without judgement, before re focusing them on the issue under discussion.

 My work with the GMC has indicated that if ‘mediation listening’ is adopted by the CE, the Doctor is more likely to ‘open up’ and provide the broader range of information that can assist the CE in deciding if the case can be dealt with locally. This was confirmed by many of the doctors involved in the pilot as indicated in the review at the end of this article.

Being Non-judgemental and acknowledging what is important for the Doctor  

Following an investigation someone is nominated to make a decision on the facts of the case, so suggesting that CE’s should be non-judgemental may at first seem odd.

Often, during an investigation, the doctor may go off at a tangent leaving the investigator somewhat frustrated and keen to get them to return to what the investigator feels is the important issue (getting evidence). However by acknowledging what is important for the doctor at that moment, regardless of its relevance at that time, he can feel listened to, and may be more forthcoming when redirected to what the investigator want to discuss.

Acknowledgement is a great tool for the mediator allowing the speaker to feel listened to and validated, without agreeing with what they are saying. This is part of active listening and has been well employed by CE’s in Doctors Meetings. Many of the Doctors stated in their evaluation that they felt that they were being listened to for the first time.

Empathy

Empathy is not usually something we would routinely use in investigations, in fact in some investigations it would not be considered appropriate. Behaving empathetically is nearly always appropriate in a mediation dealing with workplace relationships where the parties have agreed to mediation principals.

 Some of the doctors attending the interim meetings had been waiting over a year, possibly suspended, leading to considerable personal suffering. Empathy, in the context of the doctors meeting, seemed appropriate and beneficial to the outcome of the meeting.

Appropriate questioning

‘It not what you say it’s how you say it’

 Whilst the overall investigation and adjudication process is related to evidence gathering, this is not purpose of the Doctor’s Interim Meeting. This has already taken place during the investigation. It is a forum for a deeper level of information exchange that can generate a discussion that can lead to improved clarity around what the doctor can include in their response to the allegations. The evaluation of the pilot scheme suggests that a more supportive style of questioning can be helpful in this area. It seems that the difficulty is recognising that whilst the Doctors Meetings are part of a formal process, less formal procedures in these meetings can be used without detraction from the overall formality.

Disruptive behaviour

The usual way that disruptive behaviour is dealt with in an investigation is to tell the person to calm down and state the consequences of not doing so. (Or some variation of this)

In a mediation, providing both parties are happy, robust behaviour would not necessarily be criticised, and in some cases it may even be encouraged as this may be the very behaviour that brought them to the meeting. Suppressing it may prevent the underlying reasons for the conflict from surfacing.

The mediation meeting is about helping both parties to understand each other’s behaviour better and seek common interests. This can only be achieved by encouraging both parties to exchange information. A mediator would acknowledge the behaviour, possibly make an empathetic statement and, after checking that the other party is OK, possibly let it continue.

How might this work in an investigation? The dynamics is of course different as ‘the other party’ is the investigator but is it possible that an acknowledgement of how the speaker is feeling may assist the overall investigation? Might this not be better that ‘telling off’?

Again, feedback from a number of doctors in the pilot evaluation indicated that this more supportive approach contributed to the overall impression that this was not an ‘us and them situation’, with several referring to the ‘human aspect’ of the CE style.

 

THREE DAY WORKSHOP FOR DOCTORS AND LAWYERS

The GMC agreed at an early stage in training development that a large part of the 3 days would be spent in role play allowing the CE’s to be exposed to progressively more challenging scenarios. Whilst three workshops were delivered, only the first one had the benefit of using professional actors with the other two using participants.

One of the many challenges was that many of the Doctors under investigation saw the GMC as the enemy who was out to get them and were reluctant to provide a full picture of what happened, preferring to wait until the full hearing that could be many months/years away. The workshop concentrated on developing skills that would help alter this perception.

 

EVALUATION

The interim meetings ran over a three year period and the final evaluation report was produced for the GMC by an independent organisation. The report concluded:

 ‘The findings of this evaluation lead us to recommend that the concept of doctors meetings should be adopted, taking into account all of the feedback and the recommendations leading from that feedback’

Whilst the report offers comprehensive information about the study, the information provided below relates to my key interest.  That is, the benefits of selectively using more supportive styles of communication, to improve the outcome of certain types of investigations.

I began this article with an interest in whether ‘Medigation’ may be useful in supporting certain formal processes by encouraging, in this case, a greater exchange of information between the GMC and the Doctor.  I have indicated below a number of responses from the doctors relating to this.

The evaluation included a review of findings based on feedback from doctors, their legal representatives and an independent facilitator. 17 doctors, 18 legal representatives and the independent facilitator were interviewed. (See 1 below)

A key finding was that 88% of doctors said that the meeting improved their understanding of what to include in their written response following the investigation. Many of the doctors responding talked about being listened to for the first time, being treated humanely, as well as how useful the meeting was in clarifying what to include in the written response.

A number of typical responses are indicated below.

 

Responses from Doctors

‘Do you feel there were any obstacles to your sharing information with the GMC?’

‘No, absolutely not. Before the meeting I was a little wary because I did not know what to expect. They were very open and welcoming.’

 ‘No there were no obstacles at all with the two people I met. I was very comfortable about the questions they asked me. There was no hostility at all in the meeting.

‘Not in particular. Although some of the questions were quiet invasive on a personal level. Some of the GMC interest in a case seems to go beyond what would be important in a court. There is more of a subjective end point for the GMC; they are more interested in your personal situation rather than just the facts and so that can create rather a barrier.’

Did you feel you were provided with the opportunity during the meeting to share all the information you wanted to? (94% of doctors agreed)

Yes. I felt it was a really good opportunity to have someone sit and ask questions about what had happened and be able to discuss in detail. I felt ‘heard’ for once, during this process’

Yes. I didn’t know particularly what they were interested in but shared everything and now have the opportunity to elaborate on this. I did not feel rushed at all during the meeting

Would you recommend this meeting? (All doctors responding said they would)

Most certainly. Because by attending a meeting you see the human side and they were so nice to us. It gave me confidence. If people like that were making the decisions they would find out what actually happened.

It was only after the meeting that I realised how valuable it had been. They were looking at me and listening to me for the first time. I felt safe for the first time since all this started and I say this regardless of the outcome.

I met the medical case manager. He treated me with dignity and respect. He listened carefully and thoughtfully to me. He gave the impression that he grasped the importance of what I was saying. This was the first time that I felt that I had been heard and it was very helpful

 

Responses from legal representatives                                                 

Did the meeting improve your understanding of the process?

Yes it was very helpful, the case examiner conducted the meeting very well. It is a good opportunity to meet the person face to face who is conducting the investigation and for them to meet the doctor they are reading about.

It did not help my understanding because I already knew, but I think it helped the doctor. Although I had explained the process the fact that the CE at the meeting that another case examiner would initially look at the case and he would then review it meant that the doctor felt that he knew who was involved. It was no longer anonymous.

No. If the doctor had been unrepresented I can appreciate the meeting would help improve understanding but we do this day in day out so we know what will happen next and will inform our clients.

 

CONCLUSION

Following the pilot a controlled study was undertaken to assess the impact and compare the number of cases referred to a Hearing where a meeting was held, against those cases where a meeting was not held. The study concluded that 6 months prior to the pilot start up 73% of the same cohort cases included in the pilot study were referred to panel at the end of the investigation. This compares to 45% where a meeting was held during the pilot period. The study concludes that the meetings have allowed matters to be concluded more quickly in a significant number of cases whilst ensuring that only those cases where a public hearing is required are referred to MPTS. (See 2 below)

Given the success of the pilot study it was agreed that the doctors meetings would continue in London, with a further venue being available in Manchester.

It is difficult to conclude that the success of the pilot was due to change in communication style between the doctor and the GMC as the pilot had not been conducted before using traditional communication styles, which would allow a comparison. However, feedback from both the doctors and the lawyers seems to indicate that there could be a future for ‘Medigation’

What do you think?

 

FOOTNOTE

Other than the information provided in the two reports indicated below, this article is not meant to be evidence based and is just my thoughts in relation to the particular role I played in The Doctors Pilot Meetings.

  • Final Report of the Pilot Meetings with Doctors. Hewell Taylor Freed and Associates.
  • GMC Strategy and Policy Board. September 2014.

Biography


Will Parkes is a workplace mediator and trainer with over 15 years’ experience supporting both individuals and organisations in resolving conflict.

Having spent the early part of his working life carrying out formal workplace investigations he now feels that the majority of these would have a better  outcome for all involved if they had been mediated, rather than investigated.

As the founder of Workplace Communications Ltd, will is still an active Mediator and Trainer dealing with wide range of issues involving conflict management and conflict resolution.



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