When a worker is injured, RTW professionals are concerned about how to get that person back quickly, safely, and permanently.

If the injury is through work, a workers’ compensation claim may be lodged. As workers’ compensation involves issues of liability and money, disputes can occur.  In some cases disputes are resolved quickly and both parties are comfortable with the outcome. In many instances, this does not occur.

When those involved in a dispute cannot agree on what should occur, an independent third party can be brought in to help them reach an agreement.  We’ll refer to the independent third party as the neutral party. Workers’ compensation claims involve an injured worker and employer, and often the claims manager.  Ideally the neutral party will be able to help resolve the dispute while preserving the ongoing employee-employer relationship.   

This makes ADR the best option in most cases.  

What is Alternative Dispute Resolution (ADR)?

ADR (sometimes called ‘Appropriate Dispute Resolution’ by its supporters) refers to a process, outside of a court hearing, that involves a neutral party helping people involved in a dispute, resolve that dispute. While court hearings are ‘adversarial’ in nature, ADR processes generally involve people working together toward an outcome they all agree on.  

The benefits of ADR

When compared to the more adversarial court system, ADR: can be quicker and cheaper; is more flexible and informal; allows a greater degree of control over the process and outcome; is confidential; and helps foster a healthy working relationship after the dispute has been settled. ADR works best when those involved know each other and have an interest in an ongoing relationship. It’s therefore  a very useful approach to dealing with workers’ compensation disputes.  

The role of the neutral party

Generally, the role of the neutral party is to: Draw out all relevant information so that each party is fully informed; Identify or help identify what each party wants; Identify or help identify the options each party has; Suggest or help identify potential solutions; and Ensure each party is heard, and feels heard, by the other.  

ADR processes

There are a number of ADR processes, including: Neutral evaluation Conferencing Negotiation Mediation Conciliation Arbitration In the context of workers’ compensation in Australia, the last three are the most significant.

Mediation

Mediation involves a neutral party (mediator) helping people involved in a dispute, resolve it. The parties, not the mediator, who decide if and how a dispute is to be resolved. The mediator  helps the parties identify the issues, and the options they have.

Conciliation

A conciliator acts like a mediator, but is more active in giving advice to the parties about the best way to resolve their dispute. For example, a conciliator might identify several options, and then recommend one that in their opinion represents the best outcome. Despite the conciliator being able to offer an opinion it is the parties that decide whether they wish to resolve the dispute. Arbitration Arbitration is more like a court hearing than mediation or conciliation.

The neutral party (Arbitrator) acts in a similar way to a judge, and imposes a solution on the parties. Though it still falls within the definition of ADR (a dispute resolution process outside the courtroom), Arbitration can be very formal and expensive.