If mediation fails to secure agreement, general condition 14 (GC14) of the NHS Standard Contract requires the parties to appoint an expert to provide a determination – more commonly known as an arbitration ruling. As with mediation, this can be provided by the regulatory bodies or the parties can appoint their own expert(s).

Bailey & Moore provide an expert determination service, where we will review papers from each party and provide a written opinion of the correct application of the contract terms and conditions, national tariff guidance or any other relevant national policy.

Our preference is for this to follow on immediately from failure to reach agreement at mediation. We call this a “binding mediation” service, where we automatically proceed straight to expert determination at the end of the mediation process. However, some clients will prefer a break after the mediation process and a separate appointment of an expert.

The ground rules for NHS arbitrations are set out in the Dispute Resolution Process document published each year by NHS England and NHS Improvement. It is well worth reading if you are considering arbitration, particularly appendix 3, as the regulators will follow this in reaching their decision. Bailey & Moore will also follow this process if we are appointed to provide an expert determination. The key principles are:

  • Pendulum decision on each issue – no 50:50s!
  • Most reasonable offer wins
  • Financial positions not taken into account
  • Overarching principles as per Appendix 3 of DRP

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