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Alternate Dispute Resolution

Alternate Dispute Resolution. Using Negotiation and Mediation to Resolve Contested Matters at the Utilities and Transportation Commission. Scope of this presentation. ADR: Alternate dispute resolution Alternate to litigation Foundation for Commission ADR Legal sources of authority

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Alternate Dispute Resolution

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  1. Alternate Dispute Resolution Using Negotiation and Mediation to Resolve Contested Matters at the Utilities and Transportation Commission

  2. Scope of this presentation • ADR: Alternate dispute resolution • Alternate to litigation • Foundation for CommissionADR • Legal sources of authority • Rule changes • Changes relating to settlements • Sharing experiences

  3. Presenters • David Meyer, general counsel, Avista • Donald T. Trotter, Asst. Atty. General • C. Robert Wallis, Dir., Adm. Law Div. • Disclaimer

  4. Foundations for ADR • RCW 34.05.060 • Informal settlements Strongly Encouraged • WAC 480-07-700 trough 750 • Procedural aspects of settlements • Policy Statement on ADR • Policy Statement, Docket No. A-950243

  5. Legal Foundations for ADR • Administrative Procedure Act • RCW 34.05.060 • Informal settlements • Subject to approval by agency order • Strongly encouraged – but not required • WAC 480-07-700 through 750 • Procedures for settlement • Policy Statement in A-950243 • Matters to consider in settlement negotiations

  6. ADR: Public policy concerns • Distinction between Court and Agency • Agency cannot delegate decision authority • WAC 480-07-700(2); see Adm. Law Manual • Commission must review parties’ informal settlements. RCW 34.05.060, WAC 480-07-700 • Commission may reject in whole or in part • Status of an Order Accepting Settlement • Not greater than any other Commission order • Commission can’t foreclose action by future commission – RCW 80.04.210, 80.04.200 • Commission can’t/can’t let parties amend a statute

  7. Effect of 2004 Rules • Evolutionary, not revolutionary • Codify practices and law relied on • Confidentiality clarified • WAC 480-07-710(4)(g), RCW 5.60..070 • Statute: negotiations under a written agreement are confidential

  8. Effect of 2004 Rules (Cont’d) • Timing for Review • 3 weeks to 1 month before desired effect • Logistics: scheduling, analysis, hearing, decision, order, compliance • Nature of Presentation • Inform the Commission for sound decision • Offer a representative to address • Describe and advocate in cover materials • Statutory tests met; consistent with public interest

  9. Achieving settlement • Factors affecting settlement • Commission support • Commissioners support the process even if they reject or modify the result • Assign settlement judge • When warranted? • Role of settlement judge • Facilitate parties own efforts to settle • Styles and approaches

  10. Achieving settlement (Cont’d) • Support from many parties • Even if hostile to each other, realize benefits in settlements • Long-term business relationships are supported in settlement, not litigation • Use of principled negotiation • Focus on parties’ interests, not positions • Pursue creative ways to achieve interests

  11. Achieving settlement (Cont’d) • Discussing settlement at the right time • Staff often needs to complete discovery and complete its case before engaging in principled negotiations • Negotiators who know parties’ interests and have authority to make decisions • Needn’t wait for decisions from persons who don’t have participants’ knowledge of discussions

  12. Deciding to seek settlement • Parties’ perspectives • What factors weigh in deciding whether to seek a settlement? • Do parties view decision differently? • Commission perspective • Should some cases not settle? • Nature of the issues, Need for education • Small differences, hard boiled litigation strategy

  13. Commission settlement experiences • Commission learning curve existed • Needs adequate settlement review • Need for review varies • Scope and time proportional to significance • Often needs pre-agreement notice • Postponing hearings may cause delay

  14. Settlement Judge Experiences • Mediator on parties’ side of exparte wall • At best, parties capable, creative, persistent, good faith, in public interest

  15. Challenges to settlements • An offer the Commission can refuse. • Parties so eager to settle that the deal has one or more suspect or illegal provisions • Premature settlements • They change hourly after submission • Superficially analyzed settlements • Their effect comes as a big surprise to parties • Imprescient settlements • Fail to foresee catastrophic unexpected events that render settlement contrary to public interest

  16. Understanding Is Increasing • Commissioners have seen settlements that worked, settlements that were later litigated • Better feel for what to look for • Better feel for when to ask modification • Commissioners better able to identify when they should not encourage settlements • Need baseline knowledge about industries and issues • Understand that Commissioners may need to make some calls

  17. Concluding observations and questions about ADR

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