MARCH 2025 | 25 THE OKLAHOMA BAR JOURNAL 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. many strong personalities involved in construction and/or several of the disputes turn on technical issues, which often demand a more evaluative approach, there are just as many construction disputes that the parties treat in a more transactional sense – such as where liability is not disputed or where the parties have a desire to continue doing business with one another after mediation. In such cases, a good facilitator can guide the parties through the process expeditiously rather than getting into the weeds of the dispute. However, as noted above, emotions can run high depending on the level of risk undertaken by the respective parties and their level of experience with the construction process. In short, any construction project has the potential for increased stress, anxiety and hostility, especially the longer a project takes or a dispute goes unresolved. In such highly stressful situations, an evaluative technique is often better for assuaging parties and tamping down negative emotions, but once the parties put those things behind them, the negotiation should become more transactional. In Person, Remote or Hybrid Mediation? Since the 2020 pandemic, virtual mediations have become routine. There are several circumstances where virtual mediation is preferred to in person, such as where there are few, if any, emotions involved or where liability is not disputed. Remote mediation is also handy for parties, adjusters or in-house counsel from other jurisdictions who might not otherwise go to mediation due to having to travel a great distance. Finally, a remote or hybrid setting is critical for mediations involving 10 or more parties. This is primarily because of the logistics of the mediator moving from room to room, which is instantaneous in a remote setting but takes longer when handled in person. Remote mediations should be discouraged, though, when one or more of the parties have unreasonable expectations, a client is very emotional or one or more of the parties is not focused on either the dispute or the settlement process. It is far easier to switch off a computer than it is to leave a meeting being attended in person. It is also easier in a remote setting for parties (and counsel) to conduct other business, travel or engage in social activities, which can be distracting during mediation and lower the chances of success. If a human touch is necessary, that can’t always be accomplished virtually. PREPARING FOR MEDIATION Assemble the Core Documents The contract. At the heart of almost every construction dispute will be at least one agreement, and it should be the first document in the materials assembled for mediation, including any general conditions, special conditions or other terms and conditions incorporated by reference. If the contract was not in writing (yes, that still happens), then documents establishing the terms of the oral agreement should be included in your mediation materials, such as proposals, bids, estimates and correspondence. Incidentally, there are few good reasons, if any, for not sharing your client’s contract with the mediator (or other parties). If the concern is that the contract does not work well for your client, that concern needs to be at the front and openly discussed with at least the mediator. Besides helping the mediator build rapport with the client, openly discussing the terms of the
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