Alternate Dispute Resolution

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Alternate Dispute Resolution

• Using Negotiation and Mediation to Resolve
  Contested Matters at the
• Utilities and Transportation Commission

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Scope of this presentation

• ADR Alternate dispute resolution
• Alternate to litigation
• Foundation for Commission ADR
• Legal sources of authority
• Rule changes
• Changes relating to settlements
• Sharing experiences

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Presenters

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

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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

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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

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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 cant foreclose action by future
  commission RCW 80.04.210, 80.04.200
• Commission cant/cant let parties amend a
  statute

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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

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Effect of 2004 Rules (Contd)

• 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

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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

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Achieving settlement (Contd)

• 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

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Achieving settlement (Contd)

• 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
• Neednt wait for decisions from persons who dont
  have participants knowledge of discussions

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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

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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

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Settlement Judge Experiences

• Mediator on parties side of exparte wall
• At best, parties capable, creative, persistent,
  good faith, in public interest

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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

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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

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Concluding observations and questions about ADR