THE OKLAHOMA BAR JOURNAL 30 | 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. be surprised or embarrassed by such “bad news,” which should help with the process. After all, prepared clients will be more inclined to make a reasoned, informed decision rather than one based on emotion. Having said that, as suggested throughout this article, sometimes it is not possible for attorneys to effectively communicate with their clients through no fault of their own. In such cases, counsel should communicate early with the mediator about such problematic situations. Mediator Preparation If time permits, counsel should discuss the case with the mediator prior to mediation. Besides reinforcing the key points of your client’s position, pre-mediation discussions help narrow the issues and even remove some of the unhelpful ones, as noted above. Pre-mediation discussions with the mediator are also a good way to check yourself to ensure that zealous advocacy has not gotten in the way of maximizing the client’s position in negotiations. CONCLUSION It is always a good idea to ensure that you and your clients are comfortable and as relaxed as possible on the day of mediation. After all, while more informal than most legal settings, mediation is still a stressful time, and having a comfortable space to discuss the issues will help keep everyone focused on resolution. Also, it is highly recommended that the parties sign a term sheet or other instrument at the end of a successful mediation summarizing the terms of their agreement. Finally, the key to a successful mediation, whether it is a construction dispute or otherwise, is early preparation. If reasonable expectations have been set with clients, and counsel and the mediator are otherwise prepared, then the negotiations should go as smoothly as possible. ABOUT THE AUTHOR Marvin Laws spent 17 years practicing before starting his current role: operating Oklahoma’s only ADR practice dedicated to construction law disputes. Mr. Laws mediates more than 40 cases yearly with two to 18 parties in person, remotely or in a hybrid setting. Every year, he also arbitrates two to four cases. ENDNOTES 1. See, e.g., Title 42 Oklahoma Statutes §§141, 142, 142.6, 143 and 172 (Oklahoma Statutes providing for notice, recording and suit filing requirements for mechanics and materialmen’s liens on private property), and 61 O.S. §§1 and 2 and 40 U.S.C.A. §§3131 and 3133 (Oklahoma and federal payment bond statutes for public projects). 2. See, e.g., American Institute of Architects (AIA) Document A201-2017 General Conditions of the Contract for Construction §15.2.8. 3. See Britton v. Groom, 1962 OK 185, 373 P.2d 1012, 1015-16, and Title 23 Oklahoma Statutes. §21. Damages in all cases must be reasonable. See 23 O.S. §97. “Direct damages refer to those which the party lost from the contract itself – in other words, the benefit of the bargain – while consequential damages refer to economic harm beyond the immediate scope of the contract.” Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1156 (10th Cir. 2007). 4. See, e.g., 15 Am. Jur., Damages, Sec. 110, and 25 C.J.S., Damages, §84, and Schneberger v. Apache Corp., 1994 OK 117, ¶¶1112, 890 P.2d 847 (Oklahoma law limits the amount of recovery for repair and restoration costs so that damages for the cost of repairs may never exceed the diminution in value of the property).
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