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Alternative mechanisms for resolving disputes: a literature review

Clark, Bryan and Irvine, Charlie and Robertson, Rachel (2011) Alternative mechanisms for resolving disputes: a literature review. [Report]

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Abstract

This literature review for the Health Professions Council (HPC) focuses on the use of alternative dispute resolution (ADR) in the resolution of complaints or disputes between professionals and their clients. It provides an overview of the field before turning to issues of policy and practice such as the relationship between complaints handling and professional regulation; the ‘public interest’; apologies; and confidentiality. It reviews the use of ADR in a number of settings worldwide. Many of these studies show that initial responses to mediation are at best hesitant and at worst dismissive. However, once established, mediatory processes were judged by those involved to be both beneficial and effective. The literature indicates that a mediatory approach in a regulatory setting could add value to current processes for dealing with fitness to practise allegations. Certain conditions apply: for example, mediation needs to be offered early in the process, with an emphasis on face-to-face communication between the complainant and registrant, to facilitate explanation, apology (where appropriate and genuine) and plans for future learning and prevention. A ‘mediation manager’ plays a significant part in the success of those schemes that have been widely used, effectively acting as ‘champion’ during the introduction of an approach that may be unfamiliar or even regarded with suspicion by potential participants. The review also highlights two potential mechanisms for ensuring that mediated outcomes align with the HPC’s duty to protect the public: to refer these back to the Investigating Panel for ratification, and / or to have an HPC partner (with direct knowledge of the profession concerned) as part of the mediation process.