THE OKLAHOMA BAR JOURNAL 24 | MARCH 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. even if there are perfection problems (e.g., the lien was recorded late, notice issues with the bond claim, etc.). Yet, all too often, parties will spend considerable time arguing over procedural matters, sometimes at great cost. So while it might be necessary to file a dispositive motion on a claim or issue, clients often only see the cost rather than the benefit of using such pretrial tools, especially if they are not granted. Costs increase stress, which makes it harder for the parties to see a path to resolution that does not involve going to court or arbitration. While a construction dispute might be complex or involve parties who are very upset, attorneys can best serve their clients by quickly separating distractions from the important issues so that informed decisions will be made on whether to settle the case or proceed to a hearing. This article aims to help that goal by providing a few best practices for mediation preparation. Incidentally, while this article is focused on construction disputes, the core principles apply in mediations of most kinds of cases. SETTING THE TABLE There are several considerations parties must first explore before even agreeing to mediate. Which mediator will be used? Will the mediation be conducted in person, remotely or a hybrid of the two? Is a pre-mediation demand a good idea, or should they wait until mediation? Is there any discovery to be conducted or a dispositive motion to be filed that would help the settlement process, or would those activities be counterproductive? Have all the parties been correctly named and/ or joined in the proceedings? There are so many things to consider, but it all really comes down to one thing: Are the parties truly ready to try and resolve their dispute? Avoid Premature Mediations One of the biggest reasons mediations fail involves one or more of the parties having a onesided mindset that they are unable or unwilling to overcome. This is not to be confused with stubborn clients who may have an initial mindset to settle on only their own terms but, nevertheless, see the benefit of early resolution. Rather, if a client sees no potential benefit to the mediation process or perceives it as a waste of time – despite your efforts to educate them otherwise – then conducting a mediation would likely fail. This can happen sometimes when mediation is ordered by a court and/or if it is a condition precedent in the parties’ agreement. However, courts and arbitrators expect the parties to engage in serious efforts to settle the dispute, or they won’t order mediation. Likewise, the American Institute of Architects, ConsensusDocs and the Engineers Joint Contract Documents Committee would not include mediation in their form contracts if they didn’t expect industry participants to seriously attempt resolving disputes before going through a protracted litigation or arbitration process. In short, clients must understand that by the time of mediation, they may have to make concessions if a resolution is to be obtained. This is why counsel’s role in mediation cannot be overstated. While they may not agree with everything their opponents or the mediator says and certainly are not expected to capitulate whenever pressure is applied, counsel should, nevertheless, have respect for the process and communicate that respect to the client. Showing such respect often helps clients decide to give mediation a real chance. On the other hand, if counsel approaches mediation with a “check-the-box” mentality or, sometimes, if they are inexperienced or struggling with workload or other personal issues, developing realistic expectations with the client can be very challenging, to say the least. Worse, the potential for the client to see only one outcome – that of total victory – can be greatly increased when expectations have not been properly set. Still, more premature mediations usually don’t happen because counsel could have done a better job educating their clients. Rather, failed settlement efforts often involve clients who ignore the advice of their attorneys or who are not yet ready to accept uncomfortable information about their position by the time of mediation. Select a Mediator Who Can Move the Parties Not all mediators are the same. Some are facilitators who offer very little in the way of pushing the parties and virtually no assessment of the facts or the law of the case. In cases where there is very little in the dispute or the parties are merely looking to close a small gap, a good facilitator can often achieve a good result in a short amount of time. On the other end of the spectrum are mediators who are more evaluative, unafraid to get into the weeds with a party or counsel. In construction cases, a mixture of facilitative and evaluative techniques tends to work better than relying too heavily on one or the other. While there are indeed
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