PI Brief Update

Failing Negotiators in Public Services - Dr Mark Burgin

16/11/22. Dr. Mark Burgin BM BCh (oxon) MRCGP explains how dysfunctional systems of negotiation within public services increase conflict with the public.

Negotiation is a key skill with public services to manage disagreements particularly in situations where the service user does not pay for the service.

Disputes in profit led businesses can typically be resolved by asking the customer to pay for additional services or through contract law.

Services attempt to reduce demand through rationing, strict criteria and assessments but these approaches do not provide clear answers as discretion is usually available.

Negotiation is therefore a key skill to avoid the service having to devote time and resources with legal challenges and appeals.

Identifying outcomes

However simple a decision appears to be on the surface there are multiple possible outcomes from the two extremes to having a delay, agreeing to conditions and involving a senior.

Beyond these more obvious outcomes there will be other possible outcomes that will not be achieved unless special steps are taken to investigate them.

Independent medical evidence is one example of a special step that can reveal a previously unexpected disability under the Equality Act 2010.

Making a list of all the reasonable outcomes available to the negotiator gives them opportunities to take a different approach and makes it easier to see their working.

Listening to the Arguments

Written records following negotiations typically are brief and only present one point of view which makes it difficult to rebut complaints that the person was not listened to.

Service users who are not experienced at putting their arguments can take several attempts before they find the right form of words even if they do not have disabilities.

Whilst poor records do not prove that the negotiator was not listening it reflects badly upon the standards expected in that service and the training that has been offered.

A professional report that quotes the service user’s own words confirms that the negotiator was actively listening to what was said.

Positions of Power

In general the more power that is given to an individual the more that they will use that power rather than to use negotiation to find an outcome.

The answer is not to take power away from negotiators or create systems to punish them if they are involved in misconduct but to recognise and reward good behaviour.

Auditing reports or written records encourages self-reflection in those who have high professional standards but many need to be taught how to recognise good behaviour.

Feedback to the whole group containing examples of good practice can help the negotiators to learn to reflect on their own practice and stop relying on the easy answer.

Conclusions

Public services are delivered but professionals who may have little or no training in negotiation with the result that many appeals succeed against the service.

Recording the options available to the negotiator can make a failed negotiation less likely as well as giving evidence that all alternatives were considered.

Recording what the service user actually said in their own words can show that they were listened to and understood so that all issues were properly dealt with.

The greater the power difference between the negotiator and the service user the more steps need to be taken to maintain high quality negotiation.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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