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Negotiation and alternative dispute resolution

The majority of common law claims are resolved through informal negotiation prior to trial, known as the ‘pre-proceedings stage’.

Both the pre-proceeding and litigation processes offer the opportunity of a conference between the parties to discuss issues in dispute and attempt to resolve the claim without going to trial. These conferences, which might be mediated by an impartial third party, are part of a process called ‘Alternative Dispute Resolution’ (ADR) because they are an alternative to the claim being determined at trial.

The solicitors for the parties will consider whether a claim can be resolved informally (via telephone or face-to-face discussions) or at a designated ADR opportunity. The ADR could be a compulsory conference during the pre-proceeding process or a conference during the litigation stage. In some cases, a Court order will order the parties to attend a conference or mediation.

Benefits of negotiation

The benefit of resolving a claim by negotiation (either informally or during an ADR process) is that the parties can agree to a binding result based on their appreciation of the value of the claim or the risks involved, without incurring the costs of going to trial.

It is often said that in a trial, there is a winner and a loser. By resolving claims through negotiation, WorkCover endeavours to obtain a win/win result. WorkCover must balance the interests of its stakeholders, which include both employers and injured workers, and endeavour to resolve claims for the most appropriate amount at the earliest opportunity.

WorkCover is committed to managing common law claims in accordance with model litigant principles. Our philosophy of making our best offer early helps us achieve better outcomes for all of our customers.

Where the evidence or other circumstances dictate negotiations will not succeed, WorkCover will proceed to trial to determine the claim. Find out more about the pre-proceedings stage, or litigation stage.

Last updated
14 June 2019

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