Negotiating outside of court

The steps involved in negotiating a common law claim and how an outcome may be reached without going to court.

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Steps before going to court

There are several steps involved once your common law claim has started.

Your claim might be resolved and end at any step along the way.

This phase is where the claim is investigated and we try to reach an outcome without going to court. This is called the pre-proceedings phase.

Disclosure

Relevant information must be shared by you or your employer, unless there is an exception.

This process is called 'disclosure'.

How we work with your employer

Our panel lawyers will talk to your employer throughout the negotiation phase.

Your employer may attend the compulsory conference.

WorkCover and our panel lawyers will make decisions in consultation with your employer.

1. Liability decision

We ask our panel lawyers to investigate your claim to work out if there was a breach of duty of care.

This is called a liability investigation.

2. Claim value investigation

We investigate the value of the claim, this is called 'quantum'.

We will collect information including medical reports and employment records.

3. Informal negotiations

If your employer could be at fault, informal negotiations may start.

Lawyers will discuss if a claim can be resolved informally without going to court.

This stage is about trying to make the fairest offer early.

We hope to get the best result for everyone and avoid the stress, cost and long wait of going to court. The court process can take up to a year or longer.

4. Compulsory conference

If agreement isn’t reached through informal negotiation, a meeting can take place between you, your employer and other third parties.

This is called compulsory conference.

Attendees will talk about what happened and who should be at fault, or found liable.

The amount of damages will also be discussed.

An independent mediator may attend.

5. Final written offer

If agreement can’t be reached at compulsory conference, both groups will make a final written offer.

There are 14 days to consider the offers.

If accepted, the claim is considered settled and damages may be paid.

If the final written offers aren't accepted, the next stage is a trial in a court.

Negotiations can continue if you are preparing to go to court. The matter can still be resolved before trial.

How to settle out of court

You'll need to sign an agreement, regardless of how the claim is resolved.

This agreement confirms you won’t make any other claims for the injury and you'll keep information confidential.