Litigation avoidance through conflict resolution: issues for state rehabilitation agencies.

Litigation Avoidance Through Conflict Resolution: issues for state rehabilitation agencies

In American society, state vocational rehabilitation (VR) agencies operate within a cultural climate which demands that they be held accountable and responsible for the quality and quantity of services they provide to people with disabilities. In the best of such agencies, conflicts may arise because the client and the agency have different notions about which services are most appropriate to improve the employability and independent living of the client. These disputes can quickly escalate into costly legal contests when the client believes his or her rights to services have been violated or when the agency cannot or will not provide the requested services.

Conflicts may typically arise over client eligibility, timeliness of services, case closures, agency error, and agency policies. If such disputes and conflicts are to be resolved rapidly and fairly, professional agency mangers must now consider the advantages of conflict resolution as a way of avoiding litigation. In this article, we discuss the basic issues involved in this management process with the idea in mind that VR agencies need to review their policies, plans, and philosophies of conflict resolution. When conflict resolution is viewed from the perspective of litigation avoidance, both the agency and the client stand to benefit.

The Advantages of Resolution

In a general sense, a VR agency's ability to resolve conflicts at the lowest possible level reflects the idea that the agency is expected to resolve problems in the same professional manner in which it provides services. That is, the ability to resolve conflict is an expression of the agency's professional responsibility to account for its actions. This does not, of course, imply that an agency is always "wrong" and the client always "right." In fact, the concepts of right and wrong may actually distract from conflict resolution because they center upon the idea that someone is to blame. Resolving conflicts is usually less difficult when practical solutions are found that are acceptable to both sides in the dispute. Placing blame interferes with this process.

The advantages of avoiding litigation through conflict resolution include the following:

* It saves time. The agency staff and the client will invest less time solving problems and conflicts at the lowest possible level than they would if a particular conflict were resolved through formal litigation.

* It saves money. The savings in time translates directly into financial savings. Informal resolutions are almost always less expensive than formal, legal resolutions, which generally require outside assistance or attorneys. Any money saved can be used to serve other clients.

* It improves the service delivery system. Resolving conflicts at the local level can actually help strengthen the agency by giving administrators and clinical staff the opportunity to identify weaknesses in services delivery. In this way, conflict resolution becomes an appropriate use or investment of agency resources.

* It enhances rehabilitation. Conflict resolution can be a rapid process, one that does not waste the client's time or slow down the rehabilitation process. When the agency moves decisively to solve problems, the counselor-client relationship is supported and the client is not subjected to needless stressors and crises.

* It clarifies issues. In the process of defining the issues of a conflict, the agency may help clarify the main points for the staff and client alike. Communication is enhanced when the agency and the client both agree to the nature of the problem or, at least, "agree to disagree."

* It reflects proactivity. Solving problems as they occur can illustrate to the client that his or her case is important and that the agency staff is interested in fairness and high quality service. As a proactive stance, low-level resolutions function to keep disputes or conflicts within the service arena, where resources can be made instantly available to the client. Conflicts which are allowed to go unresolved and to escalate into formal disagreements will eventually move out of the service arena and into the legal arena.

These advantages may also be considered as primary characteristics of a professionally oriented VR agency that aims to maximize the product it has to offer clients in need. From the client's perspective, a VR agency which puts these characteristics into action is fulfilling its mission of advocacy for people with disabilities through its concern for problem solving. But if no attempt is made to resolve conflicts at the lowest possible level, the client may have to resort to formal appeals or litigation which may slow the rehabilitation process, at least temporarily.

While staff may consider any agency decision as a routine administrative action, the client may experience the very same decision as a major stressor or even as a life crisis. A well-defined conflict resolution policy in the agency can help reduce the negative impact such decisions may have on the client's well-being in two important ways. First, the process of defining the basic issues of a client-agency conflict necessarily includes an appraisal of the client's experiential situation or "position." So the agency is then more likely to understand the client's feelings and concerns.

Additionally, the client may receive information that helps him or her to better understand the agency's point of view. For example, if the agency is restricted by law from a particular action, a complete and open explanation of this may encourage the client to accept alternative actions. In other words, the process of defining issues may also help the client understand the agency's limitations. The process then becomes a dialogue in which the agency and the client work jointly toward alternative solutions. The conflict is thus redefined as a problem in common requiring the client's active participation. In this way, the dialogue reduces the probability of adversarial positions that could arise if the client were made to feel like an "outsider." The client thus retains some responsibility to resolve the conflict.

Policies and Leadership for

Conflict Resolution

Agency administrators and managers at all levels play a vital role in creating a service environment which favors conflict resolution. It is important that clients and staff are confident that the agency possesses a proactive willingness to resolve disputes as they arise. Management accomplishes this by setting an example through policies and actions which convey the idea that conflict resolution is a priority service within the organization. Clinical staff are much more likely to try to settle disputes early if they know they have management's support. Similarly, clients can be more open about their concerns if they believe the agency will listen to their complaints and will act to resolve them. Such an environment fosters responsible participation by client and staff.

Administrators and managers can help create this kind of environment in different ways. The following methods are general and can be adapted to any rehabilitation setting:

* Establish resolution policies. As a basic agency stance, these policies spell out the ways in which the agency prepares itself to resolve conflict as a client service. Such policies cover medication, negotiation and settlement methods in accordance with existing client rights.

* Identify decision makers. At some point, someone in the agency must make a decision to settle a dispute. Once the issues of the conflict are identified and understood, an identified decision maker must be able to evaluate information in light of resolution policies and to make the decision to resolve the conflict in a specific way that is acceptable to the agency and the client. Therefore, the decision maker must also have the authority to ensure that the agency carries out the resolution.

* Establish policy for information flow. The way information flows to resolve conflict may differ from the way it normally flows in the agency organization. That is, resolution may require the horizontal flow of information, not just the vertical flow common to many agency structures. Efforts to resolve conflict will be less disruptive to the agency if these horizontal channels are clearly defined. If, for example, the conflict cannot be solved by the counselor and the client, who else in the agency has the authority and responsibility to convey accurate information to a decision maker so that additional attempts at resolution may be made?

* Define the steps to resolution. This method involves all the other listed above in that everyone participating in the process must understand the steps necessary for policies to work well and for information to move timely and in the appropriate direction. Normally, this process involves moving the conflict and all its information to another point in the agency when resolution at the first level does not appear successful. For example, if a counselor cannot resolve a dispute by working with the client, the counselor must know that he or she must routinely pass along the conflict to his or her immediate supervisor for additional work towards resolution. In this way, the agency avoids needless delays in moving the conflict to a point or level at which resolution can be accomplished. This immediate reaction helps keep the client involved in the process.

* Identify staff to handle the actual resolution. Once the conflict is identified, the information gathered and a decision is made to resolve the conflict in a particular way, those involved in the dispute need to know who will explain the provisions of the resolution. This typically involves a meeting with the concerned parties and gives the agency the opportunity to review the problem and its solutions. Such a meeting may be conducted by the decision maker who worked out the provisions or by another designated person. In either instance, the meeting process can clearly define the agency's and the client's actions needed to bring about settlement.

If the above methods are successful in helping the agency avoid litigation, those conflicts which are thus resolved will produce a wealth of information that can be studies and translated into beneficial training objectives for agency staff.

These objectives provide feedback for the service system and are valuable as a way of teaching conflict avoidance and resolution. Because small conflicts can usually be resolved quickly at the counselor level, the larger conflicts are usually those that require general agency resources for resolution. But once those conflicts are resolved, agency staff will need to know details of how such conflicts were triggered, how to avoid similar situations in the future and how to resolve similar conflicts. Thus, lessons learned are incorporated into staff training as teaching tools to minimize the occurrence and the severity of conflicts of a particular type. From the agency perspective, this feedback may mean that valuable time and resources will not be wasted in the future. A conflict which has been resolved represents an agency investment of resources that might have been put to better use. So the process of turning conflict resolution into training topics is an important way for the agency to make the most of its investment. If a similar conflict does arise in the future, the agency and staff will be better prepared to handle it in a timely, efficient manner.

Counselors can benefit from such training because it enables them to experience vicariously the entire resolution process the agency uses to avoid litigation. Additionally, counselors are exposed firsthand to the agency philosophy that encourages resolution and litigation avoidance as an appropriate service to be extended to clients. In such an environment, counselors can develop a personal understanding of the clinical or therapeutic advantages that conflict resolutions can secure for the client during the rehabilitation process.

The entire process of litigation avoidance that begins with the agency's proactive willingness to resolve conflicts and ends with conflict resolution as a viable training topic benefits the agency in another important way. Over a period of time in which many conflicts may be resolved, the agency can learn to recognize common situations that give rise to conflict and can review its service policies on a regular basis. Conflict itself, then, becomes an important ingredient in the agency's evaluation of its own quality control measures.

Recurring conflicts may point to agency weaknesses or shortcomings, while the absence of conflict may indicate strengths. As a barometer of quality, conflict can help guide the agency toward better service delivery and can help ensure that resources are properly directed to provide needed services.

It is often difficult for an agency to separate systemic conflicts from personal ones. Particular counselors may tend to become involved in certain kinds of conflicts, while clients with particular characteristics may have similar biases. The agency that does not document conflict will have difficulty identifying such patterns.

Because placing blame is not an edifying practice, the agency as a whole has the responsibility to retain a clinical perspective about counselor-client encounters and to recognize that conflicts can occur with any human interaction. But the agency can identify and address training needs of specific counselors just as it can identify and address its own strengths and weaknesses. This practice allows conflict resolution to have a direct impact on conflict reduction through appropriate training.

Clients present another problem. If the agency is able to link the occurrence or type of conflict to specific client characteristics or situations, it again must take the clinical view and find appropriate methods for dealing with such clients. In other words, the agency can remain proactive by tailoring services or encounters with such clients to meet their needs. This approach has the double advantage of allowing the agency to put knowledge thus gained to proper use with the client and of minimizing the impact of conflict should it occur.

Conclusion

Conflict resolution is an important factor in agency accountability because it demonstrates the agency's willingness and ability to settle disputes in a way that enhances the rehabilitation process. While resolution involves litigation avoidance as a primary goal, it does so as a way of conserving agency resources that can be used for other clients.

The fiscal responsibilities of such a stance might best be viewed in its negative form. An agency which does not try to resolve conflict in a practical, constructive way on a continual basis would have difficulty accounting for its actions from the perspective of both clinical need and fiscal management. Such a non-policy would invite litigation and could be expensive to the agency in time and money.

When viewed as a positive attribute of an agency, conflict resolution leads to better services for clients and to a more professional agency. Counselors, as well as other staff members, can improve their client skills and can help ensure that the agency provides the best possible services to its clients.

Conflict can arise from the merits of a particular case or from the agency's own inability to identify methods and resources leading to conflict avoidance. However, once conflict arises, regardless of the reason, the agency and its staff have a public responsibility to resolve it quickly and fairly. If the public expects resolution, the client deserves it. Any dispute can distract from the goal and momentum of a VR case. However, the client is under no obligation to sort out systematic deficits or to endure a long wait while the agency fails to act to resolve a conflict. The agency's desire to resolve conflict can in no way interfere with or delay the client's legal rights to the appeal process as mandated by Section 102(D) of the Rehabilitation Act and 34 C.F.R. Section 361. Any attempt to resolve conflict must not be initiated as a substitute for informing the individual client of his or her rights to appeal agency decisions and to due process.

From a practical point of view, then, the client's cooperation and permission should be obtained at the outset. For, in most instances, the client is a willing and able partner, who wishes to help resolve such disputes because his or her own well-being is involved. The client may desire rapid resolution as much as the agency, because conflict resolution at the service level is less time consuming and less stressful than the formal appeals process. The client may remain cooperative only as long as he or she believes the agency is doing its best to resolve a dispute in a fair manner. The agency, therefore, must take direct action to resolve any conflicts that may jeopardize the client's rehabilitation plan. Only then can the agency fulfill its obligations to the public and to the client. Only then will the client know that he or she does not have to resort to litigation to get appropriate services.

Mr. Holmes is a rehabilitation counselor with the Client Assistance Program, Kansas Rehabilitation Services, Topeka, and is a doctoral student in the School of Social Welfare, University of Kansas; Mr. Hull is an attorney with the Office of General Counsel, Department of Social and Rehabilitation Services, Topeka; and Dr. Karst is coordinator of the Rehabilitation Services Program, Emporia State University, Emporia, Kansas.