The judge denied a request to hold mediation via Zoom. Photo: Shutterstock.com.

Before the COVID-19 pandemic, no litigator would have batted an eye at a judge requiring in-person mediation. But now, it's a hotly contested issue — as this Orlando breach of contract lawsuit goes to show.

It caused litigation over a failed medical cannabis business deal to take a detour.

Orange Circuit Judge John E. Jordan ordered Miami attorney Jason Sherry's client, who lives in Oregon and is 65, to travel to Florida to try and reach a resolution with his adversary.

Sherry's client had sought to mediate via Zoom, rather than traveling to a state that has continually reported the highest daily totals of new COVID-19 cases nationwide. But opposing counsel Robert Stovash of Stovash Case & Tingley in Orlando countered that an in-person mediation would be much more productive.

It's a case that highlights the plethora of new predicaments that COVID-19 puts judges, litigators and litigants in as they try to navigate a new normal.

"We think this is an important case to determine how courts are going to deal with appearances going forward," Sherry said. "We hope that the appellate court understands the risks of taking cross-country flights to attend proceedings in Florida, particularly as the number of COVID cases in Florida spike."

The dispute began when Kerry Herndon, who owned what was once the largest plant nursery in Florida, fell out with Rachel's gentlemen's club owners James Veigle and Toren Veigle after collectively trying to secure licenses to grow and sell cannabis.

One suit became two, as the Veigles alleged Herndon owed them money, while Herndon alleged the Veigles breached a contract by backing out of the deal.

To justify his request to appear telephonically, Herndon pointed to an administrative order from the Florida Supreme Court allowing online mediations. But after multiple hearings on the issue, Jordan declined, instead requiring all parties, lawyers and representatives to appear in person.

That sparked a motion for recusal, in which Sherry argued his client worried about potential bias and alleged the opposition's strategy was to increase expenses. Jordan agreed to step down Tuesday, noting that he must grant any legally sufficient motion for disqualification.

'We weren't pounding our fists'

Stovash said he felt Jordan was simply trying to do his job and stressed that "we weren't pounding our fists on this issue."

"If the court had ordered it to be by video conference, I would have abided by the court order," Stovash said. "In this particular case, the opportunity for resolution is diminished if the parties did not appear in person at the mediation. I could be wrong."

Stovash said he appreciates Herndon's safety concerns.

"I, of course, have concerns about the virus. I worry all the time about the virus. I am concerned about my family, my friends, my employees, colleagues, clients and others. In this particular matter, the court's position on attendance at the mediation, I believe, was a reasonable position to take," Stovash said. "There would be minimal, if no, actual contact between the parties physically in a mediation setting. The parties are mostly in separate rooms except for, perhaps, an initial meeting."

Sherry said his client was particularly worried about flying — in light of the WHO's findings that transmission is more likely when people are an enclosed space for an hour or more. The Centers for Disease Control and Prevention has also found that eight out of 10 COVID-19-related deaths in the U.S. have been among people 65 and over.

Stovash highlighted that Sherry had initially pushed for a trial in the summer, despite the pandemic. Sherry, on the other hand, said he canceled depositions in late June due to safety concerns.

"We look forward to Mr. Herndon's claims being tried to a jury," Sherry said. "We cannot proceed to trial without completing those depositions, but we were not willing to put the health and safety of the witnesses or lawyers at risk."

Stovash also claimed Sherry's client has repeatedly tried to avoid mediation. But Sherry disputes that, claiming that Stovash is referring to a prior lawsuit between the parties.

The trial is slated for September at the earliest.

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