Parties to a Queensland personal injury claim are required to attend a Compulsory Conference(conference) and ‘actively participate’ in an attempt to resolve the claim, before proceedings can be started in a Court.
An exception is made for a party, that has a ‘reasonable excuse’ not to do so.
A variety of methods are used by parties and their lawyers to try to get the most out of a conference and it’s interesting to see how the meaning of ‘active participation’ is interpreted in practice.
Some of the methods that we see arise are:
In a multi-party dispute, it’s usually easy to identify the party who’s taking a passive role before the matter gets to a conference. The party may be non-communicative or just generally indifferent about the progress of the matter.
The idea that a party could be passive at conference is at odds with the requirement under the legislation for parties to ‘actively participate’. However, in certain circumstances, it’s appropriate for a party to adopt that position – they may have a ‘reasonable excuse’. For example, where a Respondent or Contributor has a reasonable suspicion of fraud.
For the remaining parties, it’s important that the passive party is identified prior to the conference and advice is provided to respective clients about their likely attitude at conference.
If other parties see a significant exposure for the party taking a passive role, it could be useful to have some pre-conference discussions about liability, contribution or any other relevant issues. If you don’t, you might be surprised to find that a conference is a waste of time and money.
The Australian Solicitors Conduct Rules require solicitors to be, ‘courteous in all dealings in the course of legal practice’. So its unfortunate when aggression (as opposed to robust debate) is seen at conferences. Perhaps it’s an attempt to rattle the other person or, perhaps it’s because the aggressor isn’t familiar enough with the matter.
For those on the receiving end, it can feel like a personal attack and there’s simply no valid reason for this kind of conduct. It does nothing to facilitate the negotiation process. Complaints to regulating bodies may be a consideration depending on the circumstances.
Most conferences proceed with numerous offers exchanged, with those offers moving gradually towards an acceptable position. The advantage of this ‘death by a thousand cuts’ method of negotiation is that the client may feel as though they have remained in control throughout the negotiation process and have gotten the ‘best deal’, where a settlement is achieved. Of course, it’s possible that this approach may frustrate some opponents or their representatives, who are seasoned negotiators and believe that it’s best to just move the negotiations along more quickly.
When information remains outstanding at a conference, one or more parties may decide it’s best to, ‘keep their powder dry’ and to make few concessions in the negotiations. When MFOs are ultimately exchanged, they may be far apart, with parties hoping to achieve a better outcome through a litigated mediation.
This approach might be appropriate in a case where, for example, neither party has obtained expert medical evidence about a subsequent injury. In such a scenario, the parties know that more evidence will need to be gathered prior to a trial but do not know if that evidence will help or hurt their case.
This approach is less likely to arise in a claim that is regulated only by the Workers’ Compensation and Rehabilitation Act 2003 (Qld), where orders about costs flow only from MFOs. In workers’ compensation claims, the parties are under pressure to make their ‘best offer’ at conference.
Where claims are regulated by the Personal Injuries Proceedings Act 2002 (Qld) and the Motor Accident Insurance Act 1994 (Qld), parties may feel that they can hold out for a better offer at a litigated mediation.
If you have ever been at a conference where surveillance has been revealed, you’ll understand this technique perfectly. Of course, documents and information that are required to be disclosed under the legislation, should be provided on an ongoing basis in accordance with the legislation. Some innocent examples of late disclosure that arise may include providing file notes from telephone attendances with medical experts or witnesses just prior to, or, at conference (where late investigations cannot be avoided). If late disclosure obstructs the negotiations, then it may be appropriate for the party at a disadvantage to propose that the conference be adjourned and re-convened at a later date. Intentional deception of an opponent by a lawyer can amount to professional misconduct.
‘Can we cut to the chase?’
‘Can we split the difference’?
If you’re in a conference where opposing parties or their representatives are on the same page, then it’s likely that someone will try and move the negotiations along with questions like these. The difficulty with agreeing to this type of request, is that you won’t necessarily know if you could have achieved a better outcome by continuing to negotiate, by the exchange of more offers.
An efficient negotiator might also call for MFOs early in the negotiations. This may be done in response to slow movement in offers by the other party, to force the other party to make a significant concession. Where a claim is capable of resolution at conference, this technique may totally obstruct negotiations and actually backfire on the person calling for MFOs. It should not be done to bluff the opponent/s and of course, only upon instructions from the client.
‘Active participation’ can mean many very different things at a conference. It’s good idea to tailor your approach for conference to your matter, your client, your opponent/s and for the advantages to be gained under the legislation regulating the claim.