Providing Legal Solutions That Give You Peace Of Mind


On Behalf of | Feb 18, 2024 | Firm News

One common misnomer is that when conflicts escalate, the best thing to do is lawyer up and file suit. It’s very understandable why people behave this way. Emotions are high and the disputes usually involve money so it is hitting the back pocket. Sometimes, these hits can be financially painful, only making a bad situation infinitely worse. I recently consulted a client who was owed $30,000.00 for some work he had done. The problem was the other side refused to pay him due to a dispute with the potential client. We discussed his options and he ultimately opted to try and negotiate for a lower fee as the other side already, “lawyered up.” As a business attorney, I believed this to be the best option to avoid litigation as this client was struggling due to this unsatisfied invoice.

So what else can you do besides litigation? What if I told you there is an option you could pursue with or without an attorney that would take you half a day and cost less than $1,000.00? Sounds too good to be true, doesn’t it? Well it’s not. The option is called mediation.

Most lawsuits these days eventually end up in front of someone called a mediator. A mediator is an attorney not involved in the lawsuit who acts as an advocate to both sides to try and get the case settled. The mediation, which is the meeting where this occurs, takes place at the mediator’s office and the parties are in different conference rooms. The mediator bounces back and forth negotiating with both sides in an effort to resolve the dispute.

When I was a litigator, we routinely mediated lawsuits of all kinds. Business attorney mediators will tell you that they have seen, and heard, just about everything.

Prior to the mediation, the mediator will send some type of engagement agreement specifying the date, time, and location of the mediation. It will also have some type of services agreement. It will also specify what to include a letter you write to the mediator called a “Mediation Statement.” I am preparing a separate article on this. Succinctly, a Mediation Statement is the written advocacy you submit in advance that spells out your side of the story. The mediator will study both statements prior to the mediation.

Every mediator is different. Thankfully, Tulsa has some of the best mediators in the country who mediate all types of lawsuits on a daily basis. As a business attorney, I have been before many Tulsa mediators. Not all of them have been great, but most of them got the job done. One particular mediator routinely describes himself as an equal opportunity offender. He constantly pokes holes in both sides of cases in an effort to get the attorneys/parties to see how weak their position is. This method is admittedly frustrating, but I would be remiss if I said the method was ineffective. Another mediator I know has a totally opposite approach. He is very friendly with both parties while sharing his considerable experience as a former litigator. Both methods are equally effective, albeit very different.

On the day of the mediation, both you and the opposing party will present to the mediator. The mediator will visit with each business attorney Tulsa and their party first. Some mediators use the introductory session as a “joint session” where all the parties are in the same room. This concept is fading rather quickly, particularly in cases where things are rather heated.

During the initial meeting with both parties, the mediator will give you some ground rules for the mediation. The mediator will tell you that the process is confidential so if the case does not settle the mediator cannot be called to testify about the discussions that occurred. The mediator will also tell you that anything you share with him/her specifically is confidential unless you give the mediator permission to share it with the other side. The mediator will want to know whether or not a lawsuit has been filed. Hopefully, this has not yet occurred. Finally, the mediator will want to know the status of any settlement negotiations.

Most controversies that elevate to the point of a mediation have no doubt had demands and offers made for settlement. Try to give your mediator a complete list of any exchanges and consult with your business attorney Tulsa. This will aid him/her in the settlement process considerably.

After the introductory sessions, the mediator will ask who’s turn it is to respond to the most recent demand/offer. Then the mediator will begin a lengthy process of back and forth discussions to try to arrive at a number that will settle the case. Every mediator handles this process differently. In one case that was mediated very early in my career, the mediator came to our room as he thought our demand was reasonable and the other attorneys were being unreasonable. While the other business attorney Tulsa called their supervisors to obtain more settlement authority, the mediator asked my boss to show him pictures of his most recent vacation. We then chatted for about twenty minutes to let the last demand we made sink in.

Assuming the parties can arrive at a number that will resolve the dispute, the mediator will prepare a mediation agreement. Usually, the mediation agreement specifies the conduct that the parties will do to resolve the case. If there is a lawsuit, then the filing party will need to file a Dismissal with Prejudice (a document that permanently dismisses the party’s right to file suit over the dispute). The party will also need to sign a Release of all Claims. A Release of all Claims is a legal document saying that a party cannot ever pursue this claim ever again. If there is no lawsuit filed, then the party who filed will need to sign a Release of all Claims.

The final portion of the mediation agreement will specify how the mediator will be paid. Usually, the parties agree in advance to split the costs of mediation. Sometimes, parties will negotiate during the process such that only one person pays the entire balance.

Please understand that mediation is a legal process that, if successful, will produce a binding, legally enforceable contract to settle the case. It is very important that you get something you are willing to live with in a mediation. Otherwise, you may lose your right to ever pursue that claim again.

If RC Law Group can assist you in any way with a dispute, please do not hesitate to contact me. I as a business attorney in Tulsa am happy to help resolve a dispute prior to a mediation. If mediation is required, I am happy to prepare the mediation statement and attend the mediation on your behalf.