When you make a claim for Work Injury Damages, you will need to participate in a compulsory Mediation conference before you can move on to the next stage of your claim. Reaching the Mediation is exciting, but nerve-wracking, we know. It’s often the first real opportunity that you have during the process of making a claim for Work Injury Damages for your case to finally be over. Your lawyers and the Mediator understand how important this day is for you. So that you are in a good frame of mind to give your lawyers your instructions, it’s a good idea for you to have a solid understanding of how the day will proceed.
The process starts when your lawyers file an application for mediation with the Personal Injury Commission. That application attaches a full copy of your Pre-Filing Statement for the Commission’s benefit. The Defendant then files a response to your application for mediation. The Defendant will also attach a copy of its Pre-Filing Defence to the response.
What is a Mediation?
A Mediation is where all the parties to your Work Injury Damages claim gather to negotiate a settlement of your claim.
Usually, the following people attend the Mediation:
- A Mediator, who is appointed by the Personal Injury Commission;
- You, the worker (also known as the Claimant and/or the Plaintiff);
- An interpreter (if you need one);
- Your lawyer;
- Your barrister (if you have one);
- A case manager from the workers’ compensation insurer;
- The workers’ compensation insurer’s lawyer; and
- A representative from the Defendant (if necessary).
The Mediator is an independent third party who is appointed by the Personal Injury Commission. The Mediator conducts the Mediation on behalf of the Personal Injury Commission. The Mediator’s role is to review the Pre-Filing Statement and the Pre-Filing Defence and assist the parties to reach an agreement to resolve your claim for Work Injury Damages. The Mediator doesn’t have the power to make decisions about your claim and can’t direct you, or the insurer, to settle the case.
The purpose of the Mediation is for the parties to make a genuine attempt to settle your claim for Work Injury Damages. Settling your case at Mediation means that you have more control over what happens with your claim and how it is resolved. If your case goes to court, the Judge takes control and decides the outcome of your case. Mediation provides an opportunity to avoid the uncertainty, stress, risk, long waiting times and increased legal fees associated with taking your case to court.
When is the Mediation held?
After your lawyer files an application for mediation with the Personal Injury Commission, the Commission will seal the application and return it to your lawyer to serve upon the Defendant.
The Defendant then has 21 days to respond to the application.
Even if the Defendant doesn’t respond to the application, or doesn’t respond within 21 days, the Personal Injury Commission will still go ahead with your application.
After 21 days, the Personal Injury Commission will ask the parties to agree on a date and time within 28 days for the Mediation to take place. When the parties have agreed on a date and time that suits everybody, the Personal Injury Commission will advise the parties of the name and contact details of the Mediator who has been appointed to your case and tell you how the Mediation is going to be conducted.
What do I need to attend the Mediation?
The Personal Injury Commission will tell your lawyer whether the Mediation is going to be held by telephone, by audio-visual link (ie. by video) or in person.
Because you are at the centre of the process, it’s compulsory for you to attend the Mediation. Your lawyer will need you there to give instructions. It’s a good idea for you to have a support person with you too.
If you are attending the Mediation in person, the venue may be at the Personal Injury Commission in Oxford Street, Sydney, or, one of the Commission’s regional venues (usually conference rooms located at a local hotel or club). Due to the COVID-19 pandemic, the Commission hasn’t been listing Mediations in person except in specific circumstances.
If you are attending the Mediation via telephone, the Personal Injury Commission operator will telephone you on the phone number provided by your lawyer a few minutes prior to the scheduled Mediation and ask you to hold until all participants are joined. It’s important that you have solid telephone reception and that you are in a quiet room where you will not be interrupted, and with no background noise when you participate in a Mediation. It’s also a good idea to keep your phone on mute when you are not talking during the Mediation, as any background noise, no matter how small, can affect the other people on the telephone line being able to hear.
If you are attending the Mediation via an audio-visual link, you will need a laptop, iPad or tablet with a webcam and microphone and a reliable internet connection. A link to join the Mediation will be sent to you by the Personal Injury Commission prior to the Mediation. You need to click on the link to join the virtual ‘meeting room’, and you will wait there until everybody is connected to the Mediation, and the Mediator is ready to commence the Mediation.
How does the Mediation proceed?
Once all the people participating are present or connected to the Mediation by telephone or video, the Mediator will introduce themselves and explain the process to you and to any other non-lawyer present.
You should allow three hours to attend the Mediation but be prepared to stay longer if you are close to settling the case at the end of that three hours.
Each party will usually have an opportunity to give an opening speech, describing their claim, or their defence, and outlining any problems they see with the other parties’ position. Your lawyer will do this for you. Sometimes this information is supplied before the Mediation, in a document called a Position Paper.
The Personal Injury Commission has made a very helpful video for Claimants about Mediation which you can watch here.
If an offer is made to settle your claim which you accept, the Mediator will record the details of the settlement and the Mediation will end. After the Mediation has ended, there will be settlement documents for you to sign to formally record the settlement. Your lawyer will take you through these documents.
If your claim doesn’t settle at the Mediation, the Mediator will record each of the parties’ final offers and the Mediation will end. After the Mediation has ended, the Personal Injury Commission will issue a Certificate of Mediation Outcome through the Commission’s online portal. Your lawyer will send you a copy of the Certificate and tell you what the next step is in your Work Injury Damages claim.
We’ll cover what to expect at a court hearing of your Work Injury Damages claim in another blog, but if you have questions about the process and want advice, get in touch with us at Bourke Legal.