It's not a new concept, but it always bears repeating. Prior to every mediation, I try to reach the parties to find out what they have discussed by way of settlement before the mediation. This week, I was unable to reach the Plaintiff's counsel, but the defense told me that he had been trying to reach his opposing counsel by telephone since the lawsuit was initiated. He had left over 30 messages--and never received a return phone call in the 6 months that the case was pending!
The case involved a wage and hour claim brought by a disgruntled employee who was terminated last year after an alleged assault and battery of a co-worker at a car maintenance yard. Because he had been unable to reach the Plaintiff's attorney, Defense counsel earnestly expected that the opposing party would not show up for the mediation and the case would proceed to a trial or default. But alas, the attorney did show up with his client, and began by informing me that his client had been offered a significant settlement by his former employer before he filed the lawsuit. The only fact that had changed since then, was that attorneys fees had mounted, so his demand was now twice as much as it had been at the time this purported offer had been made. The trouble with that logic was that Defendant had been eager to settle at the exact amount of the alleged wage loss before all of the attorneys time had been incurred. And they weren't budging from that place--rewarding Plaintiff's attorneys for billing a lot of unnecessary time.
Ultimately, it did settle at the value of the wage loss and Plaintiff and his attorney lost an opportunity to get full value on the case by their stubborn refusal to answer the telephone calls of the defendant. Telephones are never further than your pocket these days. The failure to use them is, in my view, is inexcusable!