All about WorkCover mediations  (Vic)

If you’ve been in the WorkCover system long enough, you may have heard a WorkCover mediation being mentioned.

This article will explore the WorkCover mediation process, and when a mediation may occur.

What is a WorkCover mediation?

A WorkCover mediation is a conference that occurs between the parties

The parties being you and your representatives, and the lawyers acting for WorkCover.

The aim of a mediation is to try and settle the matter.

Or at the very least, help it to settle by identifying the relevant issues.

The mediation is conducted by a mediator.

The mediator is typically someone that has undergone mediation training.

In WorkCover matters, mediators are usually barristers who specialise in compensation matters.

This is important as it means they should understand the WorkCover laws, and can provide an opinion and help push settlement discussions along.

When is a WorkCover mediation likely to occur?

WorkCover mediation usually occurs during a common law lump sum claim.

Some people incorrectly refer to WorkCover conciliation as mediation.

However they are different things.

You can read more about WorkCover conciliations here.

WorkCover conciliations are usually held in relation to no fault disputes.

Examples of matters that may be the subject of a conciliation are: rejection of injuries, rejection of a claim, non-payment of medical expenses and termination of weekly payments.

As mentioned above, WorkCover mediations typically occur during a common law claim.

So once someone has gone through the serious injury process which is the lodgement of a serious injury application and has obtained what’s called a serious injury certificate.

A serious injury certificate can be provided by WorkSafe or if WorkSafe refuses to provide one, by a court.

You can read more about serious injuries here.

Once a person has obtained a serious injury certificate, then the WorkCover process requires the parties to go to a settlement conference.

This is different to mediation.

The settlement conference involves the parties, without a mediator, meeting to try and settle the matter.

If the matter does not resolve at this conference, then the WorkCover process requires both parties to make a formal written offer to each other. These offers are called statutory offers and statutory counter offers.

If the matter doesn’t resolve during this process, then the person bringing the claim, that is the injured person, if they wish to continue with the matter must issue what’s called a writ.

This writ is a formal document that initiates County or Supreme court proceedings.

Before the matter can be heard in either the County or Supreme court, the matter must first be mediated.

It will usually occur in the months leading up to any hearing.

It is difficult to state exactly when most mediations occur because there is such a variation in matters. 

However, most WorkCover matters do not reach mediation stage until a year or more after a serious injury application has been lodged.

And it’s important to keep in mind that most WorkCover matters never reach mediation at all.

What happens at a WorkCover mediation?

Typically what will happen is prior to the mediation starting is you will be in a room with your lawyers.

They will discuss the matter with you and likely ask you some further questions to clarify some issues relating to your WorkCover matter.

They will also likely discuss with you what to expect during the day and possible outcomes.

They may also discuss certain arguments that the other side may make.

At some point, the mediator will likely come in and introduce themselves.

They will likely explain to you what their role is and how they can assist.

Your lawyers will then leave the room and go into another room with the lawyers for the other side, and the mediator.

You will not in most cases be required to go into this room.

The parties will then each outline their case and discussions will be held.

It is possible that the other side might put an offer during this initial discussion.

It is highly unlikely that an offer would put on your behalf by your lawyers, unless your lawyers have previously taken your instructions to put an offer.

The conference with the other side could take half an hour or it could take an hour or more depending upon what is discussed.

Once the conference with the other side has concluded, your lawyers will come back into the room with you.

They will discuss what was discussed during the conference, and may ask you to clarify some issues.

You then may notice that the mediator may go backwards and forwards between your room and the room the other lawyers are in.

One side may make an offer which will be relayed to the other party.

The other party may then make a counter offer and so on.

Sometimes this process can take many hours.

And sometimes at the end of the mediation process the matter will be settled.

Other times, you can mediate a matter for hours but it fails to settle.

In some cases further discussions can be held after the mediation in the following days, weeks or months. Matters can settle as a result of this further discussions.

Sometimes further material is required to be obtained after mediation to clarify point which can help matter settled.

Sometimes, however, the negotiation part of mediations can be over quite quickly because it is apparent that the parties are just too far apart in terms of how they view the case and with the offers that they are prepared to make. In this case the mediation is over relatively quickly.

Conclusion

A WorkCover mediation is a process where the parties get together with the aim of settling a matter, with the help of a mediator.

It is different to a WorkCover conciliation.

Most matters do not reach mediation.