VOLUME 12, ISSUE 1: STUDENT SPOTLIGHT
Good Faith Over Confidentiality: The Argument for Enforcing Good Faith Requirements at the Expense of Confidentiality in Court-Mandated Mediations
Alix J. West *
With the high cost, both financial and emotional, associated with trial, mediation has become an increasingly attractive method of dispute resolution. While trial takes months or years to adjudicate an issue, mediation can allow for an immediate resolution. Trial adjudication involves parties risking an unfavorable judgment, while mediation allows for a non-binding process and in which both parties have power to negotiate a favorable decision. Trial is often high-pressure and adversarial in nature, whereas mediation is more friendly and cooperative which allows for the preservation of the relationship between the parties. Adjudication by trial involves a judgment against a party that is readily available for public viewing, whereas mediation offers the highly attractive possibility of a confidential settlement.
Often mediation is a preferred method of dispute resolution, and parties enter voluntarily into the process. However, in an attempt to lighten dockets, courts will sometimes assign cases to mediation, regardless of the parties’ desire to attend. Court-mandated mediation requires parties to attend with settlement authority, submit pre-mediation memorandum on their position, bring expert witnesses as needed, and generally participate in good faith. These court-mandated mediation sessions raise new questions, especially regarding good faith requirements. In contrast to voluntary mediation, court-mandated mediation may involve one or both parties not fully invested in putting forth a good faith effort in reaching a settlement through mediation. Because of the confidential nature of mediation, it is unclear how a party who does not participate in good faith can be reprimanded. This raises the issue of whether good faith requirements in court-mandated mediation should be enforced at the risk of violating the mediation’s confidentiality.
Although confidentiality is hugely important to the success of mediation as a form of dispute resolution, it is arguable that good-faith participation is even more important. Though mediation is less costly and time consuming than trial adjudication, it nonetheless requires a great deal of time for preparation and participation, all of which an attorney will bill their client for. Additionally, there is the time and resources of the mediator to consider. A mediators’ time may be paid for by the parties, by the court via public funding, or may be on a voluntary basis. A lack of good-faith participation wastes the time of the clients, attorneys, and mediator, while unnecessarily running up the bill. Additionally, parties who do not participate in good faith jeopardize the integrity of mediation as a form of dispute resolution.
First, this article will consider the roles of good faith requirements and confidentiality in court-mandated mediation. Next, this article will examine current sanctions available for failure to comply with good faith requirements, and finally advocate for enforcing good faith requirements, even at the risk of defeating mediation’s complete confidentiality, through attorney disqualification for parties who fail to put forth a good faith effort in mediations.
II. A Hypothetical for Illustrating the Relationship between Good Faith Participation and Confidentiality
In order to better understand the relationship and tension between good-faith requirements and confidentiality it will be helpful to consider a hypothetical situation not uncommon to mediations. Consider the following hypothetical:
There is a lawsuit between Prime Utilities, the largest gas provider in Capital City, and Joe’s Plumbing, Inc., a small hometown business. Joe’s Plumbing performed the plumbing on Prime’s new downtown offices, and Prime alleges that because of an inattention to detail and shoddy workmanship, the pipes leak and have caused a majority of the new building to smell like sewage. Prime Utilities has brought suit against Joe’s Plumbing and is alleging breach of contract and negligence. Prime Utilities is very upset that the plumbing is not functional and has since had to close down the new offices because of leaks.
The presiding judge has assigned the case to mediation. The court then sounds out notifications to both parties, which include the mediation order. In the mediation order, the court indicates several requirements for the mediation including: (1) each party must have an individual present who possesses settlement authority; (2) all statements made in mediation shall not be used against a party in any future proceedings; (3) all parties are required to participate in the mediation in good faith; (4) if a party’s arguments are dependent upon the testimony of a witness, said witness must be present for the mediation; and (5) the parties shall pay for the mediator’s fees, and the parties shall agree upon how the payment shall be divided amongst them. Aside from these five basic requirements, the mediation order does not contain any additional information as to the requirements, such as defining what consists adequate settlement authority, what behavior constitutes good faith participation, or recommending an appropriate payment plan.
The parties have mixed views concerning the appropriateness of mediation as a means of resolving their dispute. Prime Utilities does not wish to have the case settle in mediation, instead wanting their day in court and making Joe’s Plumbing’s failures public so that no other companies will hire Joe’s Plumbing. Contrastingly, Joe’s Plumbing is eager to utilize the mediation in an attempt to keep costs down and avoid the bad publicity of a public judgment against them.
John Donaghy, a senior partner at the large firm of Swanson & Swanson, represents Prime Utilities. Donaghy agrees with his clients, and wants to see the case go before a jury, believing that they will get a large award. Additionally, Donaghy has a personal stake in the litigation as he takes any settlements he can get for his client personally, and believes that he will be able to get more money out of the defendants either by trial or through private negotiations. Instead of personally attending the mediation, Donaghy sends one of the firm’s young associates, Burt Dwyer, to represent the clients in mediation. Donaghy tells Dwyer not to settle the case at the mediation, and to make sure the case is able to continue to trial. Believing the mediation to be unimportant, Dwyer does not spend a great deal of time researching case law for his pre-mediation memorandum and does not contact any potential witnesses to attend the mediation. Dwyer is of the opinion that he will be able to simply “wing” the mediation conference, and feels that the mediation is so unnecessary that he does not want for his client to pay for any of the mediator’s costs.
Meanwhile, Joe’s Plumbing is eager to settle the case in mediation. Joe’s Plumbing started out as a small father and son operation, and has grown to employ a dozen plumbers. Despite the company’s growth and recent deal with Prime Utilities, Joe’s Plumbing is still small and does not have a great deal of money to cover their attorney’s fees for future litigation, let alone paying for any potential damages. Joe Martin is the president and worked extensively on the Prime Utilities project. Martin admits that Joe’s Plumbing may be responsible for the leaks, but is desperate to keep his company intact. Joe’s Plumbing is certain that unless the case is settled quickly, the company will be bankrupted. Although Joe’s Plumbing is low on funding, Martin believes that it will benefit the mediation if Joe’s Plumbing offers to split the mediator’s fees with Prime Utilities.
Joe’s Plumbing has retained a local attorney, Leslie Wyatt, from a small boutique firm. Wyatt recognizes that Joe’s Plumbing desperately needs to reach a favorable settlement quickly and has spent a great deal of time researching and interviewing potential witnesses. Wyatt has dedicated a fair amount of her practice to settling disputes via forms of alternative dispute resolution, and strongly believes that mediation is the proper way to settle the dispute between her client and Prime Utilities. Wyatt is hopeful the mediation will be successful but recognizes that the mediation will probably last several hours before an agreement can be reached, and has thus marked off the entire day on her calendar to devote herself for the mediation.
Alan Noble will be acting as a mediator for the two parties. Noble is a practicing attorney in Capital City but dedicates a significant amount of his time acting as a mediator. Noble is a great believer in mediation as a form of dispute resolution, and feels that he is giving back to the community and the court system by offering his time as a mediator. Noble takes his duties as mediator very seriously, and often dedicates a significant amount of time preparing for the mediation by reading counsels’ briefs and doing his own independent research. Typically Noble marks off the entire day on his calendar for mediation, and foregoes billable hours for the time he spends preparing. Though the parties will compensate him for his time as a mediator, Noble’s billable hour as a mediator is significantly less than his billable hour as an attorney. Therefore, Noble is foregoing a certain amount of financial gain by acting as a mediator for this dispute.
At mediation, Wyatt and Martin present their researched arguments with enthusiasm and make reasonable offers. However, Dwyer declines to entertain any offer. When asked to make his statement of the case, Dwyer stumbles over the facts, admits to not having found a great deal of case law to support his client’s position but insists that obviously Prime Utilities has a winning case, and indicates that no witnesses will be in attendance for Prime Utilities. Concerned, Wyatt asks whether Dwyer believes it is possible a settlement could be reached today. Dwyer replies, “anything is possible.” The negotiations continue for several more hours, but late into the afternoon Dwyer announces that he does not have the authority to settle and thinks that it would be in everybody’s best interest if they just called it a day.
Wyatt and Martin are deeply upset. Wyatt spent a great deal of time in preparing for the mediation, and believes it was all for naught. Martin paid for his attorney’s time, both in preparation and attendance of the mediation, and feels that his money was wasted. Mediator Noble even feels frustrated because he feels his time has been wasted and his authority disrespected. Wyatt, Martin, and Noble believe that Prime Utilities has not acted in good faith and believe that some course of action must be taken. Specifically, the aggrieved parties believe that Dwyer’s conduct constituted bad faith because of: (1) a lack of settlement authority and/or his refusal to settle; (2) his unfamiliarity with the facts and relevant legal arguments of the case; and (3) his failure to bring key witnesses to the mediation proceedings. However, none of the aggrieved parties are quite sure of their options to right this wrong, because they fear that they may violate the mediation’s confidentiality if they contact the court.
III. Defining Good Faith and Confidentiality
Before jumping in further, it will be beneficial to define this article’s key terms: good-faith participation and confidentiality. One is an elusive concept, with very little case law describing it, whereas in the contrast, the other is a highly valued and protected concept of mediation.
A. Good Faith
Good faith is a somewhat nebulous concept; although attorneys may be able to state whether certain behavior could be categorized as being in either good or bad faith, it is much more difficult to set forth a clear, objective standard for what constitutes good faith. “Courts and commentators vary in their opinions of what constitutes noncompliance and debate the propriety of levying sanctions for failure to comply with orders to participate in good faith.” Often it is easier to comment what conduct does not constitute good faith: “evasion of the spirit of the bargain[ing], lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.” Case law is largely unhelpful in determining a clear definition for good faith, as courts often solely determine whether conduct rose to the level of bad faith rather than outlining what constitutes good faith. Regardless of the difficulty in defining the term, good faith is nonetheless an important facet of mediation, and is “premised on the belief that since [mediation] is non-binding, it will be a futile exercise unless parties engage in it with willingness to present their best arguments and to listen to those of the other side with an open mind.” Though lacking a clear definition for what constitutes good faith, there are four hallmarks which are important to consider when evaluating conduct: (1) exchange of positional papers and objective information via pre-mediation memorandum, (2) actual participation in the negotiations and discussions while at mediation, (3) participation with settlement authority, and (4) an obligation to pay for the neutral third party’s fees.
Even with the four hallmarks for evaluating whether there was good faith participation in mediation, courts struggle to identify whether parties’ acted in good faith as in Halaby, McCrea, & Cross v. Hoffman, 831 P. 2d 902 (1998). The key issue in Halaby was whether a low settlement authority constituted a failure to participate in good faith. Following a court-ordered mediation in which the attorney was authorized by his client to settle for no more than $300, the trial court sanctioned the defendant attorney. On appeal, the court found that such a low settlement authority did not constitute bad faith on its own. Rather, the court considered other instances of good faith participation such as the attorney submitting a pre-mediation memorandum and the attorney’s openness from the outset that he did could not settle for greater than $300. The court reasoned that though the settlement authority was low, the amount of settlement authority will vary for each case, and therefore the low amount was not sufficient for establishing that the attorney acted in bad faith, especially with other indicia of good faith.
Based on the holding in Halaby, the four hallmarks of good faith participation are key in evaluating an attorney’s conduct in mediation, but the absence of one hallmark does not necessarily establish bad faith. Rather, Halaby demonstrates that a good faith participation inquiry is highly fact intensive.
Confidentiality within mediation is one of the dispute resolution method’s strongest selling points, and is protected by various statutes, most notably the Uniform Mediation Act (“UMA”). UMA seeks to protect all forms of communications that occur within the mediation from disclosures by either party or the mediator. Although UMA has not been adopted by all jurisdictions, various districts have nonetheless established “different concepts of confidentiality, some providing only a general statement that the proceedings shall be confidential” while others look to Federal Rule of Evidence 408. Additionally, private confidentiality provisions may be drafted by the parties specifying when disclosures are acceptable and what recourses are available for a non-authorized disclosure. The reasoning behind UMA, and similar legislature, is that mediation is successful as a form of dispute resolution because of the confidentiality. Though mediation and trial differ in many ways, one of the largest benefits of mediation for clients is confidentiality. Whereas taking a case all the way to trial allows, so to speak, for a client’s dirty laundry to be on display to the public, mediation keeps everything private between the parties.
Mediation statutes proscribing confidentiality are to be broadly construed, even when such confidentiality may be hugely detrimental to a case, as in Wimsatt v. Superior Court. In Wimsatt, a client discovered from a confidential mediation document that his attorney had made an unauthorized settlement demand to the opposing party during mediation. The client sued both the attorney and law firm for breach of fiduciary duty, and on appeal the defendants argued that the document allegedly revealing the unauthorized demand should be under a protective order because of the mediation’s confidentiality. The court ultimately held that the defendants’ argument was correct in that the mediation briefs and emails should be protected. The court looked to the purpose of mediation and reasoned that confidentiality “encourage[d] mediation by permitting the parties to frankly exchange views, without fear that the disclosures might be used against them in later proceedings.” The court recognized that in order to further the goal of candidness during mediation, mediation’s confidentiality extended broadly, applying to “any written or oral communication.” Finally the court recognized that the Supreme Court of California had long refused to narrow the scope of mediation, and that the court’s finding on the defendants’ protective order should be consistent with earlier jurisprudence. Therefore, the court held that the mediation briefs and emails were protected from disclosure because they were made for “the purpose of, in the course of, or pursuant to a mediation.”
C. The Relationship Between Good Faith Participation and Confidentiality in the Motivating Hypothetical
Based upon the above discussion, it is clear that courts and legislatures alike highly value the confidential nature of mediation. The high value on confidentiality, along with a lack of a precise definition and clear case law on what constitutes “good faith”, threatens courts’ power to monitor and enforce good faith participation in court-mandated mediation.
Applying these key concepts to the above explained hypothetical involving Prime Utilities and Joe’s Plumbing, it is fair to say that Attorney Dwyer’s conduct falls neatly into the category of bad faith. Dwyer was unprepared in formulating and researching his client’s positions, did not bring any expert witnesses to attend the mediation despite their presence being critical, was not even authorized to offer or accept a settlement, and had a subjective intent not to contribute to the mediator’s fees. Although courts have struggled to agree on a definition of good faith for purposes of participation in mediation, Dwyer’s conduct would likely not cause many arguments if classified as bad faith. Looking at the four factors described by Edward F. Sherman, Dwyer falls short of all the hallmarks of good faith. Regardless of the obvious bad faith, the mediation in which Dwyer participated (however poorly) is still guaranteed complete confidentiality under various statutes, like UMA. Therefore, it seems like Joe’s Plumbing and Attorney Wyatt are left without remedy for Dwyer’s bad faith participation that essentially ruined the mediation.
In the hypothetical, as well as in many real world situations, attorneys, clients, and mediators are often left at a loss at what to do in the case of one or more parties failing to participate in good faith during mediation.
IV. Current Sanctions Available for Non-Compliance with the Good Faith Requirement in a Court-Mandated Mediation
The tension between enforcing good faith requirements and mediation confidentiality is not a novel topic. The issue has been raised in the past, and there do exist several options for handling issues of attorney misconduct during mediation such as sanctions under the Federal Rules of Civil Procedure, as well as state and federal statutes. Though the Federal Rules of Civil Procedure and various statutes offer relief in some circumstances, it is clear that none of these options are perfect solutions.
A. Sanctions Under Federal Rule of Civil Procedure 11
Currently, the Federal Rules of Civil Procedure offer a method for enforcing good-faith requirements in court-mandated mediations. Rule 11 sanctions would be proper in a situation arising under Rule 11(b): where a party presents a pleading or other written motion to the court that is “resented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  Such a situation would arise when a party submits a pre-mediation memorandum to the court that outlines a party’s complaints or defenses. If a party were to present a memorandum that was not complete, such as not including properly researched case law or presenting reasonable claims or defenses, a court may find that such memorandum “cause[s] unnecessary delay” and may seek appropriate sanction. Rule 11 continues in subsection (c) that a violation of the aforementioned provision may result in sanctions. The rule continues by stating:
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
Sanctions under Rule 11 offer many benefits as a method for enforcing good-faith requirements. The Rule includes both monetary and nonmonetary sanctions, most notably attorney’s fees. Attorney’s fees can be quite expensive, and the possibility of having to pay these fees should act as a deterrent to parties. Rule 11 also authorizes nonmonetary sanctions, which seemingly gives the court a great deal of leeway in determining sanctions, many of which may be inconvenient and time consuming for attorneys, such as community service.
However, even though Rule 11 does have strengths as a mode of enforcing good-faith requirements, it also suffers from several weaknesses. First, the rule is only appropriate for instances in which a writing is submitted to the court. Essentially, for Rule 11 to be appropriate, a party would have to submit a poorly prepared pre-mediation statement. Rule 11 does not cover words and actions that take place within the mediation. Second, the Rule’s language “suffices to deter” seems to mean the least severe punishment possible should be handed down. Attorneys may assume that a court will go easy on them for first time infractions, and may still fail to participate in good faith. The risk of more severe fines and other punishments would act as a stronger deterrent from failing to comply with good faith requirements.
The weaknesses of Federal Rule of Civil Procedure 11 as a mode of enforcing good faith participation in mediation can be seen in a 1986 case from Michigan. In Walters, the plaintiff corporation refused to accept a mediation panel’s nominal assessment of damages and instead insisted upon the continuation of the case to trial. Before trial, the court granted the defendant’s motion for involuntary dismissal, pursuant to Federal Rule of Civil Procedure 41(b). Following the dismissal, the defendant sought attorneys fees and costs, based upon a local rule. The court rules in favor of the defendants on the motion based upon the local rule, and also imposed additional sanctions upon the plaintiffs pursuant to Federal Rule of Civil Procedure 11. However, the sanctions imposed pursuant to Rule 11 were minimal because the court stated the rule “should not provide a windfall for those who invoke its sanctions.” The court reasoned that Rule 11 sanctions should not allow for defendants to profit so greatly considering the amount of work actually done on the case was minimal.
Walters demonstrates the chief weakness of Federal Rule of Civil Procedure 11 as a means of enforcing good faith participation: minimal sanctions. As the court stated in Walters, Rule 11 is not designed to “impose windfalls” upon offending parties, and therefore, may not act as a strong enough deterrent for parties who consider violating good faith requirements.
Consider what role Federal Rule of Civil Procedure 11 would play in the aforementioned hypothetical about Prime Utilities v. Joe’s Plumbing. Attorney Dwyer did not believe the mediation fit into his client’s goals, and as a result, did very little in terms of preparing for mediation. Part of the preparation Dwyer would have been expected to complete would include drafting a pre-mediation memorandum that outlined his client’s arguments and supporting case law. This memorandum, though used primarily to orient the mediator on the parties’ positions, is submitted to the court. Because the statement would contain Dwyer’s signature and was submitted to the court, Dwyer would be responsible if the court finds fault with the memorandum. Should the court, on its own initiative find that the memorandum contains insufficient research, the court may deem the memorandum as “caus[ing] unnecessary delay” and would be justified in issuing sanctions pursuant to Federal Rule of Civil Procedure 11. However, the poor quality of Dwyer’s pre-mediation memorandum is not the only problem with Dwyer’s participation in the mediation. Rule 11 does not authorize the court to take steps into investigating attorney’s behavior in various proceedings, but instead is limited to issues involving motions and memorandum submitted to the court. Therefore, the court would be unable to look into how Dwyer’s participation in the mediation, let alone sanction Dwyer for his failure to comply with good-faith requirements. Thus, Rule 11 sanctions have a limited scope and do not always solve issues that occur within mediation proceedings. Not only does Rule 11 have a limited scope, any sanctions under Rule 11 would be only to “deter” Dwyer from producing such a poor pre-mediation in the future. Likely such sanctions would not be overly severe, and it would merely a slap on the wrist for a firm like Swanson & Swanson.
B. Sanctions Under Federal Rule of Civil Procedure 16
Whereas Federal Rule of Civil Procedure 11 is applicable in situations in which writings are submitted to the court, Rule 16 allows for sanctions in additional situations. Federal Rule of Civil Procedure 16 includes a provision detailing possible sanctions for attorneys who fail to comply with orders during pre-trial conferences and settlements that is as follows:
On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: fails to appear at a scheduling or other pretrial conference; is substantially unprepared to participate–or does not participate in good faith–in the conference; or fails to obey a scheduling or other pretrial order. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses–including attorney’s fees–incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.
Rule 16 is an effective method of enforcing good faith requirements in that it gives the court great discretion in applying sanctions. The Rule allows for a variety of sanctions, including the attorney’s fees. The breadth of the Rule likely acts a strong deterrent to parties from not participating in good faith.
However, Rule 16 is not a perfect method for enforcing good faith requirements. Most notably, Federal Rule 16 makes it clear that failure to comply with good-faith participation can result in sanctions, but it does not clarify how a court can be made aware of these violations without in turn violating the confidentiality requirements of mediation.
In a 2001 case, the Supreme Court of California was faced with the issue of whether a mediator’s report detailing one parties’ failure to participate in good faith constituted a breach of confidentiality. In Foxgate Homeowners Association v. Bramalea California, Inc., the parties were ordered to participate in a five-day mediation session for a construction defect action. The order detailed that the communications of the mediation would be confidential and both parties were required to participate in good faith. During mediation, counsel for the defendant, Stevenson, was late and brought no experts, causing the mediator to cancel sessions. Plaintiff’s counsel then filed a motion for sanctions in order to cover the costs of plaintiff counsel’s preparation for the sessions, expert witness fees, and the mediator’s time. Later the mediator filed a report on Stevenson’s behavior that specifically detailed Stevenson’s behavior and even went so far as to contain direct quotes from Stevenson during the mediation. Stevenson and his client objected to this report on the grounds that it violated the confidentiality of the mediation. The court looked to the language of a California statute which stated:
Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.
The court recognized that the language of the statute was not created in order to allow for attorneys to escape sanctions for bad faith, but determined that the language was clear that a mediator was prohibited from revealing any communications that took place in a mediation.
Based on the holding in Foxgate, in the hypothetical case of Prime Utilities v. Joe’s Plumbing, it is clear that neither Attorney Wyatt or Mediator Noble will be able to notify the court of Dwyer’s misconduct. According to the Foxgate court, “neither a mediator nor anyone else may submit to a court… any report” detailing specific instances of speech or conduct within the mediation without the agreement of all parties to the mediation. Therefore, Rule 16 sanctions would be inappropriate unless Wyatt and Dwyer agreed to notify the court of Dwyer’s misconduct, which clearly be highly unlikely because Dwyer is unlikely to bring his own misconduct to the court’s attention. The confidentiality of mediation thereby protects Dwyer’s misconduct and allows him to escape sanctions.
Even though Federal Rule of Civil Procedure 16 authorizes a court to sanction parties who fail to put forth a good faith effort in mediation, Foxgate demonstrates that it is difficult for a court to be made aware of a parties’ conducts without sacrificing the confidentiality of mediation.
C. State and Federal Legislation
Numerous states have recognized the importance of enforcing good faith requirements in court-mandated mediation and have thus enacted statutes imposing upon all parties to act in good faith.
Many states have statutes relating to mediation requirements, and often include good faith requirements. However, each state possesses a different statute with different levels of requirements, and sometimes the requirements do not amount to much. In Florida, for example, the statute pertaining to mediation allows for sanctions only if a party fails to appear for a scheduled mediation. In Avril, a mediation was scheduled for the parties involved in an automobile accident, and although the defendants appeared at the mediation, they were unwilling to offer anything more than a nominal settlement. Defendants contended that they were unwilling to offer a higher amount because they had not yet had time to conduct discovery. Plaintiffs moved for sanctions, arguing that such behavior constituted bad faith. The trial court agreed with the plaintiffs, but on appeal, the court reversed in favor of the defendants. The court found that the Florida Rules of Civil Procedure allowed for sanctions only for failure to attend mediation or violation of a mediation agreement. The court noted that defendant’s refusal to settle was not evidence of bad faith, and was not grounds for sanction under Florida law.
Turning away from state statutes and focusing now on federal statutes, one of the most notable is a federal statute holding counsel liable for excessive costs that reads:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously [sic] may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
In 2010, a New York Bankruptcy Court utilized 28 U.S.C. § 1927 to deal with a situation in which a creditor refused to participate in a mediation. In Reynolds, Wells Fargo and a debtor were ordered to attend a mediation in order “to attempt to resolve disputes by and between [them].” Following the mediation, the court was notified by the mediator’s report that one party had failed to participate in good faith, which included a laundry list of wrongdoings that stated in part: “[the creditor] attended the mediations prepared only to repeat a pre-conceived mantra that indicated that Wells Fargo was not open to any compromise that would involve taking a single dollar out of their pocket” and “Wells Fargo’s only offer came after the hearing in which the Court stated the consequences of bad faith, and such offer was unacceptable to the other parties.” The court described that it had power pursuant to 28 U.S.C. § 1927 to impose sanctions should it find that a party acted vexatiously to compound the proceedings. In examining the alleged bad faith, the bankruptcy court focused upon the fact that even though the creditor attended the mediation, his lack of “active participation” did not satisfy the requirement to participate in good faith. Additionally, the court noted that other factors affected its decision, including Wells Fargo resistance to filing a pre-mediation memorandum and the creditor’s authority to settle only up to a certain amount.
Based upon the holding described above in Reynolds, it seems that 28 U.S.C. § 1927 acts a strong and useful tool for courts to enforce good faith requirements in court-mandated mediation. However, this is not actually so, as Reynolds was ultimately reversed. On appeal, the district court focused heavily upon the bankruptcy court’s argument that the creditor’s limited settlement authority amounted to bad faith and ultimately held that the bankruptcy court abused its discretion. The district court reasoned that because the mediation order only required the attendance of an individual who had settlement authority, Wells Fargo did not act in bad faith “by sending a person with authority to settle for the anticipated amount in controversy and who is prepared to negotiate all issues that can be reasonably expected to arise.” Additionally, the district court voiced its concern that the bankruptcy court’s analysis may have extended too far when it analyzed the creditor’s alleged lack of active participation. According to the district court, “confidentiality considerations preclude a court from inquiring into the level of a party’s participation in mandatory court-ordered mediation, i.e., the extent to which a party discusses the issues, listens to opposing viewpoints and analyzes its liability.”
In evaluating the above-mentioned statute and federal statutes that mandate good faith participating in mediation, it is clear that there is a great deal of variety in the statutes. The first statute examined, the Florida statute, as described and applied in Avril, lacks teeth. The statute is narrow, and seems to require only the most minimal participation to avoid sanctions. Contrastingly, the federal statute described, 28 U.S.C. § 1927, is much broader. However, the statute’s breadth may be an issue in that it does not clearly define what conduct is actionable, and thus allows for a mediation’s confidentiality concerns to overshadow it.
If the hypothetical case of Prime Utilities v. Joe’s Plumbing were to take place in a district that had a state mediation statute similar to that in Avril, Attorney Dwyer’s behavior would go unpunished. Even though Dwyer did not brief himself on the facts of the case or the applicable law, his presence at the mediation alone would protect him from sanctions under a statute similar to that in Avril. Changing the facts slightly, if the hypothetical were to take place in a district that adopted a statute similar to 28 U.S.C. § 1927, Attorney Dwyer’s conduct may be grounds for sanctions. Perhaps the only weakness of 28 U.S.C. § 1927 is that it does not clearly define what constitutes “unreasonable” or “vexatious” behavior. Through some argument, Attorney Dwyer may be able to escape sanctions by claiming that his failure to prepare a proper pre-mediation statement and bring witnesses does not constitute “unreasonable” or “vexatious behavior” as the statute requires. However, as shown in Reynolds, such an outcome will be heavily dependent on whether a court views 28 U.S.C. § 1927 to authorize them to investigate activity that would otherwise be protected by a mediation’s confidentiality.
Ultimately, when it comes to state and federal statutes that enforce good faith participation in mediation there seem to be two key shortcomings. First, there is a wide discrepancy amongst the statutes in what constitutes behavior that rises to the level of sanctions. In jurisdictions like those in Avril, an attorney’s conduct must rise to a high level of bad faith before a court is willing to impose sanctions. Conversely, other state statutes have a much lower threshold, such as the federal statute examined above, requiring only “vexatious” conduct that impedes the progress of mediation. Such discrepancy may create confusion as to what behavior is acceptable, especially in the case of visiting attorneys. Second, some statutes, like 28 U.S.C. § 1927, lack clarity in defining what behavior can be sanctioned. Good faith is not defined in any of the statutes, and even though attorneys may have an opinion of what constitutes good and bad faith, opinions may differ thereby creating controversy and confusion. Good faith participation is a key component in creating a successful mediation, and statutes that enforce such participation need to be both consistent and clear.
V. A Proposal to Enforce Good-Faith Requirements: Attorney Disqualification
As this article has discussed up unto this point, there are a variety of remedies available to enforce good faith participation in court-mandated mediation, but all the options have serious drawbacks. Because good-faith participation is a major component in having a successful mediation, requirements dictating good faith must be stringently enforced. This section will describe the attorney disqualification proposal, will then consider the strengths and weaknesses of this approach, and will conclude with an application of the proposed method to the motivating hypothetical case between Prime Utilities and Joe’s Plumbing.
A. The Method: Disqualification for Failure to Comply with Good Faith Requirement
Though Federal Rules of Civil Procedure 11 and 16 both act as a means for a court to punish parties who fail to comply with good faith requirements in court-mandated mediations, the Rules have shortcomings. Namely, Rule 11 is designed to be as lenient as possible with language like “must be limited to what suffices to deter repetition of the conduct.” Perhaps Rule 11 is not nearly as threatening to attorneys in order to deter misconduct and bad faith in mediations. Likewise, Rule 16 falls short in that it is unclear how a court is to be notified that Rule 16 sanctions are necessary and proper without violating mediation’s confidentiality. Additionally, state and federal statutes are available as options for enforcing good faith participation, but they too have weaknesses. Therefore, any proposed method for enforcing good-faith requirements in court-mandated mediations should have two goals: (1) be a strong deterrent and (2) be clear on how a court should be notified of potential misconduct, while also protecting confidentiality as much as possible.
Courts that view failures to comply with good-faith requirement as a serious threat to the integrity of court-mandated mediation can institute a stricter form of sanctions than those available under the Federal Rules of Civil Procedure because courts possess “an inherent power to regulate the practice before it and protect the integrity of its proceedings.” The attorney disqualification method is a means for enforcing good faith participation in court-mandated mediation and is as follows: When parties are notified that their case has been recommended for mediation, it shall also be noted that attorneys and clients alike are required to participate in good-faith. In order to avoid confusion, courts should define good faith for purposes of mediation. Additionally, parties will be warned that a failure to comply with the good faith requirements will result in disqualification for the offending party’s attorney for the remainder of the case. The notice shall also contain a procedure for parties to notify the court via motion in the case of opposing counsel’s misconduct. These procedures will strive to maintain the confidentiality of the vast majority of the mediation’s proceedings, and will indicate that only statements or conduct made in bad faith shall be reported.
Should an attorney feel that opposing counsel has failed to comply with the mediation’s good faith requirements, the attorney shall submit a motion to the court within 30 days of the mediation. Upon receipt of the motion, the court will notify both parties that attorney conduct is under review. Such notification will act as the beginning of a 14-day window in which the attorney under review has an opportunity to submit a motion in opposition. After the 14-day time period has expired, the court will have 30 days in which to rule upon the motion.
The court’s ruling on the motions will indicate whether the attorney failed to comply with the good faith requirement. If the court finds that the attorney under review appears to have complied with the requirement, the case will continue as normal. However, if the court finds that the attorney under review has failed to comply with the good faith requirement, the court will disqualify the attorney and the attorney’s firm from further representation in the case. The disqualification will not disqualify the attorney from collecting fees owed to him for hours spent working on the case up unto this point. The case will be stayed until the client can find new representation.
The following figure demonstrates what it would look like if a court were to adopt the attorney disqualification method for enforcing good faith participation in court-mandated mediations. The figure is rough representation for how a mediation notice would look, and how the court would address issues of confidentiality, good faith participation, and possible sanctions for parties who fail to comply with the good faith requirements.
B. The Strengths and Weaknesses of the Disqualification Method
The benefits of the attorney disqualification method are multiple: (1) attorney disqualification is a strong incentive for parties to act in good faith; (2) a structured method for notifying the courts of misconduct makes it clear how parties can obtain sanctions while also preserving the confidentiality of the mediation as much as possible; (3) and the opportunity for courts to clearly define “good faith” will clarify for all parties what conduct is acceptable.
The threat of being unable to see a case through from beginning to completion will likely be at the forefront of attorney’s minds as they prepare for mediation. Because the consequences of failing to comply with good faith requirements are so strong, the attorney has a strong incentive to both prepare for mediation adequately and to participate in the actual mediation proceedings by offering valid arguments, considering settlement offers, and bringing witnesses as necessary.
The structured method for notifying courts is a huge strength of this method, as the previously available modes of sanctions are unclear on how to notify a court. Each court will be able to tailor its instructions for filing a motion for failure to comply with good faith requirements so that only necessary pertinent to bad faith is provided, while the rest of the statements and conduct can enjoy the protection of the mediation’s confidentiality.
Finally, because the mediation notice prepared by the court will include the court’s definition of “good faith”, a great deal of confusion will be cleared up, and attorneys will have a better idea of what conduct is acceptable in mediation.
This method, admittedly, is not without fault. The drawbacks of the attorney disqualification method include: (1) severity may act as a deterrent for future parties to willingly enter into mediation; (2) absolute confidentiality is not maintained; and (3) unfairness to the client.
Though one of the method’s strengths is that it is a strong incentive for parties to comply, the severity of punishment may act as a deterrent for parties to use mediation as a form of dispute resolution at all. However, this negative is somewhat alleviated because this method is proposed for only in the context of court-mandated mediation, not necessarily all forms of mediation.
Next, this method does sacrifice the ultimate confidentiality of mediation. Though it strives to protect the majority of statements and conduct made during mediation proceedings, it still does not keep everything confidential. However, proponents of this method would argue that the desire to maintain confidentiality of all mediation statements and conduct may in fact act as an incentive for parties to comply with good-faith requirements.
Finally, a possible weakness of the attorney disqualification method may be that it is unfair to the client. Though the attorney is forced to live with the consequences for failing to comply with good faith requirements, the client also must face hardship. Because the client’s representation has been disqualified, the client is left scrambling to look for new representation and continue the case.
C. Applying the Disqualification Method to the Hypothetical Case
Applying this proposed method to the aforementioned hypothetical mediation between Prime Utilities and Joe’s Plumbing will help illustrate the strengths and weaknesses of the approach. Joe’s Plumbing has clearly invested a great deal into the mediation, both financially and emotionally. Joe Martin’s retention of an Attorney Wyatt will cost the company significant money, and Joe’s Plumbing’s high hopes for the mediation resulting in a settlement have likely weighed heavily upon Martin’s emotions. Contrastingly, Prime Utilities’ counsel’s has not invested much time in preparing for the mediation, and displayed generally uncooperative behavior during the proceedings. Because of the disparity in preparation and as well as the emotional toll of the unsuccessful mediation, Martin will ask his attorney to draft a motion to the court for sanctions against Attorney Dwyer for a failure to comply with the court’s mediation procedures.
The first step under the proposed method is for Wyatt to prepare a motion to be submitted to the courts. Wyatt’s motion should analyze the standard of good faith described by the court in the mediation notification, and then analyze specific instances of Attorney Dwyer’s conduct that fell short of the requirements. In writing the motion, Wyatt must be careful to include only statements and conduct that demonstrate bad faith, and to avoid disclosing irrelevant information that is otherwise protected by the confidentiality of mediation. Second, the motion will be submitted to the court, but will be filed confidentially, so as to continue to protect the mediation’s confidentiality. Third, the presiding judge, upon receiving the motion, will submit a brief notification to both parties, which will put Dwyer on notice that his behavior in mediation is under review to determine whether it fell short of the good faith requirement. This notification will begin the 14-day window in which Attorney Dwyer may submit his opposition to the motion. Fourth, the presiding judge will rule on the motion within 30 days of the receipt of Attorney Dwyer’s opposition to the motion, at which point, she will notify both parties of her ruling.
Based on the facts of mediation, the judge will indicate in her ruling that she has found Dwyer’s conduct fell below the good faith standard after analyzing the facts provided by both parties in their motions. The judge will focus on Dwyer’s admission of having done very little case law research, his unfamiliarity with the facts of the cases, and his failure to bring any witnesses to mediation, despite said witnesses being critical to having a successful mediation. The judge will likely note that Dwyer’s refusal to entertain settlement offers alone was not conclusive evidence of bad faith, but combined with the aforementioned factors, contributed to the finding that Dwyer conducted himself in bad faith. Finally, the judge will include in her ruling on the motion an order that disqualifies plaintiff Prime Utilities’ current counsel, Swanson & Swanson. The case between Prime Utilities and Joe’s Plumbing would be stayed until Prime Utilities retains new counsel.
Mediation is an attractive option both for the parties and for the courts. Mediation allows for parties to settle more quickly than adjudication by trial would allow, and allows for parties to be actively involved in negotiating a favorable result. Additionally, mediation often allows for the preservation of relationships, both business and personal, which might otherwise be damaged by the adversarial nature of trial. Mediation is beneficial to courts and judges, which are often weighed down by large dockets. Mediation allows for the docket to be cleared up more quickly while also preserving judicial resources.
Because mediation is attractive to clients and courts alike, court-mandated mediation is becoming more common. Court-mandated mediation’s success rides heavily upon the good faith participation of all parties, and currently there are few remedies available for parties whose adversaries fail to comply with good faith requirements. Though Federal Rules of Civil Procedure 11 and 16 are options, neither is perfect. Rule 11 applies only to written motions or memoranda. Therefore Rule 11 is applicable only in situations in which a lack of good faith is apparent in the preparation of pre-mediation memoranda. Rule 11 is not applicable for conduct, either verbal or physical, within the actual mediation. Rule 16, on the other hand, allows for a variety of sanctions, including attorney’s fees, for a failure to act in good faith in pretrial conferences and settlement discussions. However, Rule 16 falls short in that it is unclear how an attorney is supposed to notify a court for a violation and how such notification would affect the confidentiality of mediation.
In an effort to ameliorate the current lack of sanctions for a failure to comply with good faith requirements in a court-mandated mediation, the attorney disqualification method has been proposed. The method can be quickly summarized in that it allows for courts to specifically indicate a good faith requirement, define what constitutes good faith, and specify a procedure for notifying the court for an attorney’s failure to comply. If the court finds that an attorney has in fact failed to comply, the court will disqualify the attorney and his firm from participating in the case any further.
Attorney disqualification has more teeth than either Rule 11 or 16 because it not only imposes monetary sanctions, but involves the removal of the offending attorney from the case. Additionally, the procedure associated with the disqualification method allows for courts to clarify what constitutes good faith and to specify a procedure for notifying a court of an attorney’s failure to act in good faith. This clarity accomplishes two goals: removes confusion and protects confidentiality. Without a clear definition of good faith, attorneys may be confused as to whether opposing counsel is acting in good faith, and such confusion could inhibit settlement talks. The defined procedure protects the mediation’s confidentiality in that it requires disclosures relating only to misbehavior, and maintains confidentiality over the rest of the statements and conduct made during mediation.
There is no denying that the attorney disqualification method is extreme: it involves extensive involvement by the courts to create mediation notifications that include the necessary definitions and procedures and severe consequences for attorneys who fail to comply with the good faith requirements. However, because good faith participation is so intrinsic to mediation’s success, it is essential that behavior that qualifies as bad faith is punished so that the parties involved do not suffer and court-mandated mediations can remain a successful alternative to trial adjudication.
Posted in: Volume 12, Issue 1
 Stephen B. Goldberg, et. al., Dispute Resolution: Negotiation, Mediation, Arbitration, and Other processes 443 (6th ed. 2012).
 David S. Winton, You can Lead a Horse to Water…, 11 Ohio St. J. on Disp. Resol. 187, 190 (1996).
 Goldberg, supra note 1, at 443.
 Winton, supra note 3, at 185.
 Maureen A. Weston, Confidentiality’s Constitutionality: The Incursion on Judicial Powers to Regulate Party Conduct in Court-Connected Mediation, 8 Harv. Negotiation L. Rev. 29, 43 (2003); See also Stephen B. Goldberg, et. al., Dispute Resolution: Negotiation, Mediation, Arbitration, and Other processes 194 (6th ed. 2012).
 See generally, John Lande, Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs, 50 UCLA L. Rev. 69 (2002); See also Donna Shestowsky, Disputants’ Preferences for Court-Connected Dispute Resolution Procedures: Why Should We Care and Why We Know So Little, 23 Ohio St. J. on Disp. Resol. 549, 582 (2008).
 See, John P. McRory, Mandated Mediation of Civil Cases in State Court: A Litigant’s Perspective on Model Choices, 14 Ohio St. J. on Disp. Resol. 813, 847-48 (1999)(A party who dutifully complies with the mandate and comes to mediation ready for serious negotiation should be justified in the belief that the other party will do the same.).
 Alexandria Zylstra, The Road for Mediation to Mandatory Good Faith Requirements: A Road Best Left Untraveled, 17 J. Am. Acad. Matrimonial Law 69, 70 (2001).
 See Don Peters, Can We Talk? Overcoming Barriers to Mediating Private Transborder Commercial Disputes in the Americas, 41 Vand. J. Transnat’l L. 1251, 1295-1298 (Arguing that even though attorneys will bill at a lower rate for mediation, such billing practices are the “primary reason mediation is not used more in commercial disputes.”).
 See Craig A. McEwen & Laura Williams, Legal Policy and Access to Justice Through Courts and Mediation, 13 Ohio St. J. on Disp. Resol. 865, 873 (1998) (“Legal policies that produce reliance on the private marketplace for mandated mediation services rather than either public provision or volunteer service tend to hike the cost.”).
 Please note the situations and characters in this motivating hypothetical are entirely fictional, and are not based upon an actual case.
 John Donaghy demonstrates many qualities of “The Dismisser” approach to mediation. See Julie Macfarlane, Culture Change? A Tale of Two Cities and Mandatory Court-Connected Mediation, 2002 J. Disp. Resol. 241, 257-58 (2002) (Dismissers regard mediation as nothing more than a fad, and prefer either traditional methods of negotiation or adjudication by trial. Dismissers often take this view because “lawyers have always negotiated at a time at which they feel that it is in the client’s best interests.”).
 McEwen, supra note 11, at 873 (Paying attorney’s fees for representation in mediation may exhaust the dispute resolution budget that a party would have used to pay for courtroom adjudication. In such a scenario, a party is faced with a tough choice. In order to preserve the dispute resolution budget needed to continue on to court, the party may go to mediation without the counsel he feels is necessary. In the alternative, the party may go to mediation with the desired representation of counsel, but the dispute must be settled in mediation because attorney’s fees for mediation will consume the party’s dispute resolution budget).
 Leslie Wyatt demonstrates qualities described as the “True Believer” approach to mediation. Macfarlane, supra, note 10, at 256.
 Peter Thompson, Codifying Mediation 2.0: Interplay Between Mediation and Offer of Judgment Rule Sanctions, 26 Ohio St. J. on Disp. Resol. 327, citing Peter Thompson, Good Faith Mediation in the Federal Courts, 26 Ohio St. J. on Disp. Resol. 363 (2011); Roselle L. Wissler, Court-Connected Settlement Procedures: Mediation and Judicial Settlement Conferences, 26 Ohio St. J. on Disp. Resol. 271, 282 (2011); Robert Rack, A Letter to My Successor, 26 Ohio St. J. on Disp. Resol. 429 (2011).
 Edward F. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be Required? SMU L. Rev. 2079, 2090-91 (1993).
 Halaby, McCrea, & Cross v. Hoffman, 831 P. 2d 902, 908 (Colo. 1998).
 Weston, supra note 6, at 32-33.
 Thompson, supra note 16, at 372-73.
 Weston, supra note 6, at 46-47.
 See generally, Goldberg, supra note 1, at 247-60.
 Wimsatt v. Superior Court 152 Cal. App 4th 137, 141 (Cal. App. 2d Dist. 2007).
 Id. at 150 (quoting Fair v. Bakhtiari, 40 Cal. 4th 189 (Cal. 2006).
 Id. at 152-156; See Foxgate Homeowners’ Ass’n v. Bramalea California, Inc., 26 Cal. 4th 1 (Cal. 2001), Rojas v. Superior Court, 33 Cal. 4th 407 (Cal. 2004), Eisendrath v. Superior Court, 109 Cal. App. 4th 351 (Cal. App. 2d Dist. 2003).
 Sherman, supra note 18, at 2090-91.
 Weston, supra note 6, at 32-33; see also Wimsatt v. Superior Court 152 Cal. App 4th 137, 141 (Cal. App. 2d Dist. 2007).
 Jacqueline Nolan-Haley, Is Europe Headed Down the Primrose Path with Mandatory Mediation?, 37 N.C. J.Int’l L. & Com. Reg. 981, 1008-09 (2012); See generally, Jacqueline Nolan-Haley, Mediation: “The New Arbitration,” 17 Harv. Negotiation L. Rev. 61 (2012); See, Maureen A. Weston, Checks on Participant Conduct in Compulsory ADR: Reconciling the Tension in the Need for Good-Faith Participation, Autonomy, and Confidentiality, 76 Ind. L.J. 591 (2001).
 Fed. R. Civ. P. 11(b).
 Fed. R. Civ. P. 11(c)(4).
 Advo Sys. v. Walters, 110 F.R.D. 426 (E.D. Mich. 1986).
 Id. (“Local Rule 32(j)(3) provides that where a defendant accepts, and the plaintiff rejects a unanimous mediation evaluation, the plaintiff must obtain a verdict 10% greater than the evaluation in order to avoid the payment of actual costs to the defendant.”).
 Fed. R. Civ. P. 11(c)(4).
 See Fed. R. Civ. P. 11; See Fed. R. Civ. P. 16.
 Fed. R. Civ. P. 16(f).
 Foxgate Homeowners’ Ass’n v. Bramalea California, Inc., 26 Cal. 4th 1 (Cal. 2001).
 Thompson, supra note 16, at 385.
 Avriil v. Civilmar, 605 So. 2d 988 (Fla. Dist. Ct. App. 4th Dist. 1992); see also Rawlings v. Rawlings, 2008 Utah App 478 (Utah 2008).
 Id. at 989 (citing Fla. R. Civ. P. 1.720(b) and (c)).
 In re Reynolds & Sons, Inc., 424 B.R. 76 (Bankr. S.D. N..Y 2010).
 In re A.T. Reynolds & Sons, Inc., 452 B.R. 374 (S.D. N.Y. 2011).
 Avriil v. Civilmar, 605 So. 2d 988, 989 (1992); See also Rawlings v. Rawlings, 2008 Utah App 478 (2008)(finding Utah state statute on mediation participation allows for sanctions only when a party fails to attend a mediation conference).
 In re A.T. Reynolds & Sons, Inc., 452 B.R. 374 (S.D. N.Y. 2011).
 See In re Reynolds & Sons, Inc., 424 B.R. 76 (Bankr. S.D. N..Y 2010); In re Reynolds & Sons, Inc., 424 B.R. 76 (Bankr. S.D. N..Y 2010).
 Supra, Sections III and IV.
 See, Fed. R. Civ. P. 11; See Fed. R. Civ. P. 16.
 Fed. R. Civ. P. 11 (c)(4).
 Fed. R. Civ. P. 16 (f).
 Supra, section IV(C), at 21.
 Smith v. Cleveland Clinic Found.,151 Ohio App.3d 373, 374 (Ohio Ct. App. 2003) (citing Royal Indemn. Co. v.
J.C. Penney Co., 27 Ohio St. 3d 31, 33-34 (Ohio 1986)).
 See Fed. R. Civ. P. 11; Fed. R. Civ. P. 16
 Goldberg, supra note 1, at 443.
 Fed. R. Civ. P. 11(b).
 Fed. R. Civ. P. 16(f).