Docket Number
Policy Statement on Alternative Dispute Resolution (ADR) (A-950243)
BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
| In re the Matter of DOCKET NO. A-950243 Relating to Alternative Dispute Resolution | DOCKET NO. A-950243 POLICY STATEMENT |
Statement of Policy: This policy statement arises from discussions among interested persons, the Commission, and Commission Staff regarding forms of alternative dispute resolution, the uses of ADR, and the role of parties who participate in ADR. These guidelines are based on parties' and the Commission's experience in several collaboratives. Most commenters believed that it would better serve the Commission's interests if it were the subject of a policy statement rather than a rule. Other guides are available for reference, including NARUC Model Guidelines for Settlement and the Center for Public Resources' "Negotiated Settlements of Utility Regulatory Proceedings." In organizing a collaborative or negotiation, or in approving one, the Commission may require certain procedural elements; may require that the participants discuss and decide specified procedural or substantive elements; may provide certain elements as "given," and may limit the substantive elements to be discussed.
Organizing a Negotiation. Parties to a negotiation may find it helpful to discuss, at the beginning of the negotiation, and clarify or articulate their agreement on procedural aspects of the negotiation, including the following elements. The nature of the negotiation, its context, the identity of participants and any history of mutual dealings, and the extent of participation and formality may render some elements irrelevant and others of varying importance in a particular negotiation.
(1) The subject of the negotiation and matters that will be included or excluded from discussions.
(2) The purpose of the negotiation, including exactly what product the parties expect to achieve -- i.e., an agreed filing, an agreed proposed rule, etc. -- and how they will know they have achieved it.
(3) The relationship between the negotiation and other matters that could affect it, including pending adjudications or litigation, pending rulemaking, or pending legislation, and whether good faith participation in the negotiation should constrain any activities of participants in other forums or proceedings.
(4) The interests that might be affected by the matter, names of persons who will represent each interest in the negotiations, whether there will be alternates, whether all necessary interests are represented and whether multiple parties with similar interest may or must consolidate their participation; the obligation of negotiators to prepare; to attend meetings, to keep constituencies informed, and how meetings will be handled if one or more negotiators are absent or are unprepared.
(5) The roles of participants -- will some be technical advisers and not a party to any outcome?
(6) The role of agency staff or staff counsel as active participants in the negotiation. Commission Staff is authorized to participate fully and is ordinarily expected to do so. Other participants may not by agreement limit the participation of Commission Staff.
(7) Provision for including new participants that may come forth during the negotiation.
(8) Whether there will be impartial third-party assistance to convene, facilitate, or mediate the negotiations; that person's role; and how she or he will be paid.
(9) Whether there are interests or persons not participating directly in the negotiations, such as legislators or commissioners, who should be kept informed of progress; if so, who will do so, and how they will do it.
(10) That any party may withdraw from negotiations at any time, what the remaining parties may do if that occurs, and whether the withdrawing party should have the right to veto other parties' continuing efforts to accommodate each others' interests.
(11) That decisions will be made by consensus; that consensus means unanimity unless participants define it differently; and whether any decision made by consensus may not later be changed by consensus.
(12) That all positions and agreements on specific issues or sets of issues are tentative and may be modified until there is a consensus agreement on an acceptable package that addresses all issues.
(13) What will happen if the parties are not able to reach consensus: for example, what they will do and how the agency, if a party, will proceed if parties are only able to agree on some elements of the matter in discussion.
(14) Whether constituents will have to ratify language agreed to by their representatives and that all parties, including agency representatives, may check back with persons in each organization who have final decision making authority.
(15) How meeting agendas will be set, and by whom.
(16) Ground rules for behavior at meetings, if needed.
(17) Whether records of the negotiating sessions will be kept, by whom, and for what purpose.
(18) Whether meetings will be open and observers will be welcome to attend.
(19) What information participants will need to participate effectively (for example, whether some common level of technical understanding is needed, or whether some sort of technical assistance in areas such as accounting, economics, engineering, etc., will be available).
(20) How new information, if needed, will be obtained so it is credible to all participants and useful to the negotiation.
(21) How confidential information will be protected, bearing in mind the law regarding confidential documents in government possession.
(22) Procedure for establishing subcommittees, and for their operation.
(23) If the negotiation may be the subject of media attention, who will deal with the media, if needed, and how.
(24) The timetable for the negotiation.
(25) That the result of the negotiation should be expressed in writing, with each participant signing, to formalize the agreement.
(26) Whether ground rules for the negotiation, expressing the parties' consensus on the issues stated above, should be expressed in writing.
(27) Whether parties desire to waive the rule that statements, admissions, or offers of settlement made during the negotiation shall be admissible in evidence in any ensuing formal hearing before the commission over the objection of the person making the statement, admission, or offer of settlement.
(28) How the final product will be presented, to whom, and who will participate in the presentation.
(29) How meetings will be handled if one or more negotiators are absent or are unprepared.
DATED at Olympia, Washington, this day of November 1995.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
SHARON L. NELSON, Chairman
RICHARD HEMSTAD, Commissioner
WILLIAM R. GILLIS, Commissioner
