MARCH 2025 | 27 THE OKLAHOMA BAR JOURNAL Several other items are commonly used in construction disputes to substantiate or defend construction claims, such as: Cost estimates, bids, proposals and take-offs Daily logs or other progress reports, notes, photos and videos Requests for information Quality control and testing reports Quality assurance reports Certified payroll or other time records Vendor estimates and invoices Rental agreements and invoices Delivery tickets and haul logs Meeting minutes and summaries Project schedules and weather data Again, this is not meant to be all-inclusive. There could be many more documents that are relevant to the dispute, and if so, they should be part of your mediation materials. While your practice might be to ask your client for everything – their entire project file – just make sure that by the time you prepare for mediation, you have pared down the information to as few documents as possible. Besides risking confusion, too much information can needlessly increase the costs of mediation. Preparing a Timeline Whether it is contained within the mediation statement or produced as a stand-alone document, a good timeline is invaluable to the settlement process. Once the core documents are assembled, they should be placed in chronological order to build the timeline. If there were in-person meetings, remote conferences or telephone discussions for which no written record was made, the dates of such events and summaries of the same should, nevertheless, be part of your timeline. For attorneys, taking the time to organize project documents and using them to prepare a timeline will help reinforce the key events and allow for better representation at mediation. It will also help pare down the core information to only those things that have a significant bearing on negotiations. For mediators, having a snapshot of the timeframe and key events will help put the focus on what matters and what does not. This is especially true if, after the best efforts of counsel, there are still numerous critical documents to be included or relied upon in mediation. For example, rather than producing hundreds of documents for the mediator, a timeline summarizing the same can be provided, after which the mediator can request any specific items included in the timeline. This should help reduce the time and cost of mediation. From a defensive standpoint, timelines can be used to communicate to the other party problems with their case. For example, a clear timeline showing the communications before, during and after the submission of a bond claim or recording a lien can help illustrate the failure to perfect such claims. The failure to follow claims or disputes procedures, issues with statutes of limitations or other similar temporal problems also can be clearly demonstrated by showing the events in a short, digestible timeline. Summarizing Damages As with the underlying contract, there are few good reasons, if any, not to provide a clear and concise summary of damages during the mediation process. Sometimes, your client’s damages are a moving target, which can be very frustrating to the party wanting to write a check. Worse, a moving target may give the other party an excuse to offer very little, if anything, in settlement. This can further exacerbate the parties’ hard feelings if they think the other side is “playing games,” which can frustrate negotiations. Nailing down your client’s claims well in advance of mediation should help reduce such issues and make the path to resolution easier. Naturally, that means involving your client early in the process and developing reasonable expectations. There should rarely be disputes over the original contract amount, approved changes orders or payments made. Nevertheless, it is always good to begin a discussion of claims and/or defenses with a statement of the current contract amount (and time if timing is an issue). A simple contract accounting summary might look something like this: Contract Price: Original Contract Amount $1,450,000 Change Order 1 (approved) $30,000 Change Order 2 (approved) $15,000 Revised Contract Amount $1,495,000 Payments ($1,300,000) Balance Before Addressing Claims $195,000 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.
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