All parties involved in a dispute about a work injury damages claim must participate in mediation in the Commission, except in some limited cases.
Mediation is not a mandatory step for the worker if the insurer hasn’t met their obligation to respond within 42 days after being served the pre-filing statement.
An employer may be excused from participating in mediation if the employer wholly disputes liability in respect of the claim.
For Sydney-based matters, the Commission’s staff will contact the parties to agree on a suitable date for mediation, to take place within 28 days. A mediator will then be assigned to the mediation.
For regional-based matters, the mediation application will be referred to a mediator who will contact the parties to agree on a suitable date for mediation, to take place within 28 days.
The Commission’s mediation services are free to all parties.
One of our panel of nationally accredited mediators will use their ‘best endeavours’ to bring the worker, employer and the insurer to agreement.
The mediator does not decide the outcome of a work injury damages dispute or provide advice. The mediator’s role is to facilitate discussion between the parties so they can attempt to reach an agreement. In most cases, the Commission’s mediation process is successful in resolving work injury damages disputes.
If the parties fail to reach agreement, the Commission will issue a Certificate of Mediation Outcome. The certificate will certify the final offers made by the parties in mediation. The worker may then commence court proceedings.
Court proceedings for work injury damages must begin within three years of the injury date, unless the court allows commencement after that period. The period of three years excludes time taken to undertake certain requirements (for example, Commission proceedings to resolve a dispute regarding the degree of permanent impairment). The three-year restriction also does not apply while a pre-filing statement that has been served by the worker on the employer or employer’s insurer remains current.