Help: I need an NHS contract mediator!
1st March 2019 is the day for appointing a mediator for NHS contract negotiations according to the NHS Operational Planning and Contracting Guidance 2019/20 (“the Guidance”). Where will they find them?
Why is this an issue?
NHS contracts may be awarded for one year or many, but renewals are typically from 1 April each year. Tenders have long since been submitted and a preferred Provider selected, but what happens when negotiations with the preferred Provider cannot be concluded?
The Guidance sets out a timetable for concluding these negotiations. If they are not concluded between the parties by 1 March, a decision can be taken locally as to whether to enter mediation. Such a decision would need to be discussed with and communicated to NHS England and NHS Improvement. The parties are then given a further two-week window in which to utilise mediation to finalise the terms. If that process fails, the outstanding issues would be referred to arbitration.
Scope of disputes
The use of the “NHS Standard Contract” with its standard form of Particulars, General Conditions and Service Conditions has undoubtedly reduced the scope for discussion, but there is still plenty of scope for disagreement in key areas such as contract price.
Commissioners have limited budgets and Providers are being squeezed on margins. At the same time, models of healthcare are changing so rapidly that both Commissioners and Providers can sometimes find it difficult to project forward for the whole period of a contract which might last for seven years or more. How confident can they be when establishing a formula for assessing price that it will continue to work fairly for both parties over the whole period of the contract?
Mediators are increasingly being used to assist parties to finalise their negotiations about the future, rather than just to resolve differences over the past. It is an interesting time for mediators but potentially challenging the parties, all of whom will be seeking mediators with relevant experience within the same two-week window. Make sure you find one with experience of health service negotiations.
Link to Tony Hughes Mediation CV