THE OKLAHOMA BAR JOURNAL 34 | 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. have an accurate picture of the facts and issues involved in the case. Therefore, discovery must be complete. When you know what a fair and equitable resolution of all the issues would be, you can evaluate the parameters of what might be the strengths and weaknesses of your client’s position. That enables you to form a settlement strategy: from the “optimum result” ranging to “a result my client can live with.” This sort of analysis can only come about when you know your case. When you have been efficient, issued discovery in a timely manner and have discovery responses, you are ready to schedule mediation. HOW IS MEDIATION SCHEDULED? Mediation can be scheduled by agreement of the parties directly with a mediator. Of course, that does require agreement of the parties, and when agreed, mediation can be scheduled as soon as discovery is completed. Absent agreement, a request can be made of the court to order mediation, but you may be in a county where it is common practice for the court to order mediation as a routine part of a scheduling order. WHO SERVES AS MEDIATOR? Parties are generally able to choose a mediator by agreement, or perhaps your court would make a selection from suggestions of counsel if you do not reach an agreement. The cost apportionment will be determined by the court. When the expense of a private mediator is cost prohibitive, the Oklahoma Supreme Court Early Settlement Mediation program is available. This program operates under the Oklahoma Dispute Mediation Act,4 which affords confidentiality of proceedings and offers statewide (including virtual) coverage. Offices are located in Norman, Tahlequah, Ada, Stillwater, Bartlesville, Enid, Oklahoma City, Ardmore, McAlester, Lawton, Tulsa and El Reno. WHY MEDIATION? Mediation affords parties and their counsel the opportunity to hear each other in a way that doesn’t happen in the course of a case in any other way. Neither a deposition nor a trial actually affords parties time to sit and listen to each other in the way sitting in a conference room does, listening to the questions and answers between the opposing party and the mediator. The sharing of views allows for an opportunity not merely to compromise but to explore ways in which each party can gain a resolution that is satisfactory. When only one party is represented by counsel, mediation is a particularly useful tool for the settlement of a case. When the opposing party is unrepresented, you have very limited opportunities to speak about the issues in the case. Assuming you have discovery accomplished or are otherwise sufficiently prepared to engage in settlement negotiations, having a neutral third-party mediator who is directing questions of both parties regarding their goals in settlement and itemizing their requests for settlement, you, as the attorney for the one party represented, do have the opportunity to engage in settlement negotiations, something that is not available in any other way. The certainty of the result is a significant factor in favor of mediation over trial. There is always a great deal of uncertainty about the outcome of litigation of the issues. Testimony never sounds quite like you expect, or witnesses may not appear – or if they appear, they may not testify as expected. Your case may sound excellent on direct examination but not as clear-cut under cross-examination. All of that uncertainty is eliminated in mediation. The decision is solely in the hands of the parties, those persons who know the facts and nuances of the issues the very best. Through mediation, they maintain control of their lives and their futures, and though they may not have accomplished everything they would like, they did come Mediation affords parties and their counsel the opportunity to hear each other in a way that doesn’t happen in the course of a case in any other way.
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