THE OKLAHOMA BAR JOURNAL 26 | 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. parties’ agreement(s) – the good, the bad and the ugly – will help clients be better informed and able to make the right decision when the time comes. Also, any documents changing the contract terms – such as change orders, modifications or other similar instruments – should be gathered for mediation. If change orders are not in dispute or if the documents are so voluminous that it would dramatically increase the time and cost of mediation if produced, summaries should be provided. As discussed below, having a firm handle on the contract price, the revised contract price (after agreed-to changes) and what is in dispute is critical to maximizing any recovery or defense, and the contract documents are usually the first of the primary tools to help accomplish your clients’ goals. Other contract documents. Plans and specifications are always part of the parties’ contract when they exist, but they are not always necessary to the mediation process. There could literally be hundreds of drawings and/or hundreds of pages of specifications, but none of that will matter if the dispute has nothing to do with the installation of the work (such as a payment dispute) or only involves a particular item of work. In cases where some discussion over the technical aspects of the work is required, gathering only the drawings or specifications at issue is recommended. Producing “everything” is usually not necessary or productive. Note: When assembling select drawings or specifications at issue, care should be taken to include any general or special notes or provisions that may apply but are found elsewhere in the plans and specs. Correspondence. The next biggest piece of information helpful in mediation is the written communications between the parties. This includes letters, memoranda, emails, text messages and virtually anything in writing between the parties, with third persons or internal communications. Like plans and specifications, there is a potential for thousands of pages of communications to exist, and a majority of the same will not be relevant to any significant issue. Paring down communications to only those that are relevant and have the potential to help the settlement process is essential. At a minimum, correspondence about disputes, claim notices, default or termination notices, etc., should always be assembled as part of the mediation process. Having said that, there are people who put very little, if anything, in writing when conducting their business affairs. They often default to personal discussions – on-site, remotely or over the telephone – to discuss changes or problems encountered during the performance of the work. In such cases, counsel should do their best to extract from their clients the dates and/or timeframes and content of any relevant oral discussions or meetings. Also, there may be other written documents that memorialize the parties’ discussions and conduct, as noted below. Other documentation. Different kinds of disputes require different kinds of documentation. For example, a claim involving dirt work quantities may require surveys, delivery tickets or haul logs, whereas a structural issue might require an engineering analysis. Claims involving flooring, roofing, cladding or other integrated building systems might require the manufacturer’s literature or industry guidelines. Oftentimes, parties will be eager to get their attorneys such information, which is very helpful, but again, having the contract documents and communications between the parties concerning the issues is just as vital. The next biggest piece of information helpful in mediation is the written communications between the parties. This includes letters, memoranda, emails, text messages and virtually anything in writing between the parties, with third persons or internal communications.
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