Following our introductory article on Alternative Dispute Resolution (ADR), Return To Work Matters now looks at how ADR is being used to improve outcomes for injured workers and their employers.

Although ADR has the potential to deliver positive results, its ability to deliver speedy, inexpensive and sustainable resolutions is in a large part dependent on the nature of the administrative system that surrounds it.

With years of experience in analysing and creating dispute resolution systems, Nerida Wallace understands what works.

1. Pre-Process Stage/ System Coordination

According to Ms Wallace, it is important to get things right from the start. Time and money are lost each day a dispute continues. It is therefore crucial that the dispute resolution system has in-built commitment to resolving issues efficiently.

Important aspects of the pre-process stage include:

• Quality of the initial decision – focusing on making the right decision the first time and providing for effective internal review procedures;  
• Involvement of insurers – encouraging cooperation and allowing all relevant information to be shared among the parties early in the process. According to Ms Wallace, the more enlightened workers’ compensation administrators will encourage insurers to improve their game; and,  
• Coordination between parties and professionals – encouraging employers, employees, claims managers, doctors, rehabilitation professionals and others involved in the process to be on the same page before the ADR process begins.

2. Operation of State Bodies Overseeing the Process

Bodies that oversee the workers’ compensation dispute resolution process impact on how quickly and effectively a resolution is reached.

Ways they can have a positive impact on outcomes include:

• Providing advice – taking responsibility for informing workers and employers of entitlements, and making sure parties are well informed of their options;  
• Providing efficient administrative support - implementing systems that allow for information to be shared, and claims monitored, efficiently; and,  
• Keeping efficiency up and costs down – providing for a speedy, inexpensive (yet effective) resolution of the dispute.

3. The ADR Process

Ms Wallace points out that ADR processes provide a “forum where parties can come up with innovative solutions to their problems rather than strict legal solutions to their problems.” However, success can depend on those running the process (ie Conciliators, Mediators).

Successful Dispute Resolution professionals will focus on:

• Collecting all information – calling for all relevant information at the earliest possible stage so that the process may proceed on the most complete set of facts;  
• Controlling the process – while giving the parties control over the content of discussions, ensure that parties maintain a productive dialogue; and,  
• Ensuring satisfaction with process – ensuring each party feels like they have had their side of the story heard.

4. Interaction with Medical Doctors/Medical Panels

Many workers’ compensation disputes involve a conflicting interpretation of an injury. Reducing the level of medical disputation can have a significant impact on how quickly disputes are resolved. Ms Wallace says that limiting the incidence of ‘duelling experts’ (doctors on either side of the dispute arguing about what has been the cause of the injury and what the prognosis is) is a big part of an efficient process.

Ways to improve medical doctor interaction with the system include:

• A standardised evaluation method for determining incapacity – using consistent standards to minimise disagreement; and,  
• Use of an ‘arbiter’ system in medical panels – where doctors representing either side cannot agree, bringing in a neutral doctor “who makes a binding decision that cuts out the duelling expert problem, and dramatically reduces the cost”.

5. Interaction with the Legal Profession

According to Ms Wallace, “legal costs can be the difference between a workers’ compensation scheme that is broken and one that isn’t”. Ms Wallace explains that her inquiry into the New South Wales system prior to the setup of the Workers Compensation Commission found legal costs were around $300 million per year. In the first year of the Commission this figure was reduced to $80 million. “That just shows what can be done if you design the system well.”

With this in mind, an effective Dispute Resolution system will seek to limit the involvement of lawyer advocacy by:

• Limiting lawyer advocate involvement to cases dealt with by courts or tribunals; and,  
• Trying to keep cases out of courts and tribunals.

6. Government Monitoring and Dedication to Improvement

“Most politicians don't get into workers’ compensation,” explains Ms Wallace. “If there isn’t much white noise, they won’t do anything." While governments may be generally reluctant to make changes, it is important that they stay attuned to how and why a system is succeeding or failing so that systems can be continually improved.

Straight from the source

Following introductions to both ADR processes and systems, it’s now time to get an idea of how they are operating around the country. Stay tuned to Return To Work Matters for a series of interviews with people working inside the system to see how well the theory is being put into practice.

Nerida Wallace is a lawyer, author, and a Principal of consultancy firm Transformation Management Services.