Atherley v. UnitedHealthcare of Florida, Inc.

Filing 32

ORDER denying 31 Plaintiff's Unopposed Motion to Mediate Telephonically. Signed by Magistrate Judge Carol Mirando on 2/28/2018. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARK ATHERLEY,
Plaintiff,
v.

Case No: 2:17-cv-332-FtM-99CM

UNITEDHEALTHCARE OF
FLORIDA, INC.,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Unopposed
Motion to Mediate Telephonically (Doc. 31) filed on February 27, 2018.

Plaintiff

lived in Cape Coral, Florida at all material times, and Defendant is a Florida
corporation with its principal place of business in the State of Florida.
3.

Doc. 1 ¶¶ 2-

Plaintiff’s counsel is located in West Palm Beach, Florida, and Defendant’s

counsel are located in Fort Lauderdale, Florida.

The parties have scheduled to

mediate before Jay L. Townsend, Sr. in Tampa, Florida on April 9, 2018.

Doc. 30.

Plaintiff seeks the Court to permit the parties and their representatives to mediate
telephonically because the parties seek to minimize fees and costs leading up to and
during mediation scheduled on April 9, 2018.
oppose the requested relief.

Doc. 31 at 1-2. Defendant does not

Id. at 2.

Local Rule 9.05 provides that all parties, corporate representatives, and any
other required claims professionals must be present at the mediation conference
unless otherwise excused by the presiding judge. M.D. Fla. R. 9.05. This Court

previously has explained, “[t]he rationale behind the requirement that a party attend
the mediation in person is so that the party may actively participate in the
discussions and negotiations.” Hernandez v. Wilsonart Int'l, Inc., No. 2:09-CV-747FTM, 2011 WL 899469, at *1 (M.D. Fla. Mar. 15, 2011). Moreover, “Court-ordered
mediation with each party physically present facilitates compromise and resolution,
which saves the parties’, the [C]ourt’s, and the public’s resources-in other words,
saves them a burden.”

Chancey v. Hartford Life & Acc. Ins. Co., 844 F. Supp. 2d

1239, 1241 (M.D. Fla. 2011).

For the Court to dispense with this important in-

person requirement, a party must provide a compelling basis to do so.

Collazo v.

United States, No. 8:14-cv-2326-T-33MAP, 2015 WL 1138484, at *2 (M.D. Fla. Mar.
13, 2015).
Generally, difficulty in arranging personal appearance at mediation due to
limited financial means or other hardship does not amount to a compelling reason to
dispense with the in-person requirement.

See e.g., Collazo, 2015 WL 1138484

(denying the plaintiff’s request to appear remotely at mediation because he was
unemployed and needed to focus on searching for employment); Pecoraro v. State

Farm Fire & Cas. Co., No. CIVA107CV777LTSRHW, 2008 WL 3842912, at *1 (S.D.
Miss. Aug. 13, 2008) (“This Court has denied other requests based on hardship,
including one in which the Plaintiff lived in Bartlesville, Oklahoma, had limited
financial means to travel to Mississippi for the mediation, was disabled to the point
of being legally blind, did not have a driver’s license, and her means of travel were
limited.”).

Here, all of the parties and their counsel are located in Florida and are

-2-

at their liberty to mediate before a mediator of their choice, who practices at a location
convenient for the parties.

The parties also do not state whether their mediator

allows telephonic mediation.

Docs, 30, 31. Thus, the Court finds the circumstances

presented here do not constitute compelling grounds to allow telephonic mediation,
and the spirit of the mediation requirement is best accomplished when all parties are
physically present. See Collazo, 2015 WL 1138484, at *2.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff’s Unopposed Motion to Mediate Telephonically (Doc. 31) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 28th day of February,
2018.

Copies:
Counsel of record

-3-