MARCH 2025 | 29 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. Withholding information. Sometimes, parties or their counsel may have information that could cause problems with negotiations if shared. For example, parties are sometimes concerned with another’s potential for hiding assets, destroying evidence or other similar nefarious conduct. Sometimes, a client may be so angry with the other side that they believe they have been defrauded or cheated, even if the dispute is a legitimate one under the parties’ contract and there is no evidence of malfeasance. Raising such issues with the other side can be counterproductive, as it could exacerbate hard feelings and push the parties further into their corners, especially if allegations are unsupported. Similarly, including an unfounded or otherwise problematic claim in a damage summary has the potential to cause an opponent to not treat other viable claims seriously. If the goal of disclosing a fact or raising a problematic claim is to embarrass, intimidate or otherwise unsettle your opponent, then disclosure to other parties is discouraged. What good will come from trying to embarrass your opponent? However, as noted herein, it may take your client some time to come to grips with hard truths about their case. For example, a project owner who has sued their general contractor for breach of contract and fraud may truly believe they were intentionally deceived by the contractor. However, if you determine there is no fraud based on your review of the evidence, should you “drop the claim” for mediation purposes? Can you even do so if your client insists on including such allegations in a mediation statement? This can be a dicey situation, especially if your client still feels cheated, despite your evaluation. One way around this conundrum is to share your mediation statement with only the mediator and not your opponent. This allows the client to vent as necessary while, at the same time, avoiding raising any issues with the other side, which could derail negotiations. The downside to not sharing mediation materials with the other party(ies) is that you are removing a golden opportunity to advocate for your client directly to their opponent(s) without the filter of the mediator. If necessary, two mediation statements can be used: one to share with opposing counsel and the mediator and another for the mediator’s eyes only. Regardless, whether to include a problematic allegation or claim and/or when to pull such a claim off the table is up to counsel and their client on a case-by-case basis. Indeed, sometimes, clients will not be emotionally ready to remove a claim until they are well into the process (and sometimes, they never get there). Client Preparation By the time a mediation statement is prepared, along with the timeline, documents and damage summary, counsel should have met and/or discussed the issues with their client at least once, if not several times, depending on the complexity of the issues. Hard issues – like an agreement that excludes attorneys’ fees from being recoverable by a prevailing party, exculpation clauses or other limitations like some of those noted earlier – should have been explained thoroughly. Once the mediation statement is prepared, you should share and discuss it with your client, again confirming they understand the positions being taken as well as what the other parties are expected to argue in opposition, not to mention the risks in moving forward if a compromise is not reached at mediation. Most mediators, especially those who place an emphasis on a more evaluative process, will raise many or all the problematic issues directly with your client. Clients who have been adequately prepared will be less likely to
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