|The UTC's website has moved! Visit our new site at http://www.utc.wa.gov. Please update your bookmarks and favorites.|
Policy Statement on Alternate Dispute Resolution Techniques and Case Management, A-940351
DOCKET NO. A-940351
BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
The Washington Utilities and Transportation Commission has undertaken an inquiry into administrative process, examining ways in which case management and alternative dispute resolution techniques may be used to enhance and improve case processing and decision-making at the Commission.
The inquiry included a Staff paper identifying terms and concepts, and asking a number of questions; extensive and thoughtful comments by a number of persons who appear regularly before the Commission; a workshop featuring discussions among the commissioners, commenters, the office of the Attorney General, and Commission Staff; and a draft and final Commission summary and reflection on the questions and the comments as well as circulation of a draft policy statement and receipt of comments. All documents and comments in this docket are on file in the Commission's record center.
This Policy Statement (a) describes the suitable role of ADR in Commission administrative proceedings; (b) suggests some ADR processes to which the Commission will be receptive in proper cases; (c) identifies case management techniques not requiring rulemaking that it believes suitable for use in Commission proceedings; and (d) identifies possible subjects of rulemaking that are necessary or could be helpful in implementing ADR and case management techniques.
A. The Role of Alternate Dispute Resolution Techniques in
The Commission believes that alternate dispute resolution (ADR) techniques have the potential to equalize the power of participants and their access to the Commission's processes; allow parties’ greater control over the results of matters in which they are involved; better reflect the complexity and speed of the broader utility and transportation marketplaces, where litigation can be costly, complex, and slow; promote better Commission decisions; and save time and money for all parties.
The Commission encourages the identification of agreed facts, the identification and limitation of issues, and partial agreements or stipulations whether or not the parties are able to settle all issues involved in a dispute. The Commission does not endorse settlements involving major shifts in policy that deprive it of the opportunity to determine policy; settlements involving negotiations not conducted in good faith; and settlements in which the Commission is unable to determine that the result is consistent with the public interest or that otherwise fail to meet pertinent standards.
To achieve the greatest benefit from negotiation, mediation, collaboration, or other ADR process, all parties, including Commission Staff, should have the power to bind themselves to the agreed result of the process. Commission Staff should ordinarily have the power to make that commitment.
The Commission also supports the use of alternative dispute resolution techniques in formulating rules, when those techniques are suitable, and in collaborative efforts to reach accord on issues in which the technical lines between policy development and adjudication may be blurred.
The Commission will be sensitive to prehearing process in cases as they develop, and may order either a conference or a consultation among the parties when parties are not using appropriate voluntary means to resolve issues. The Commission will not read the language of WAC 480-09-465, stating that the Commission may invite the parties to consult among themselves, to forbid the Commission from ordering consultation if warranted in the proceeding.
B. ADR Processes
In general, the Commission encourages the use of ADR techniques.
The Commission encourages the use of ADR techniques to pursue and achieve voluntary settlement of disputes to the extent appropriate in the administrative setting of the Commission, as discussed in this statement . Processes available for use, in addition to direct interparty negotiation, include the following.
1. Mediation in which a non-party facilitator acceptable to the parties assists them in reaching an agreement;
2. Discovery conferences in which affected Staff or consultants for all parties have the opportunity to participate in informal discussions to resolve preliminary matters without further need for paper, narrow their questions, avoid duplication, limit inquiries to matters reasonably needed to resolve the issues in the proceeding, and have the opportunity for immediate resolution of disagreements;
3. Collaboratives in which a complex or difficult issue may be addressed, perhaps within or removed from an adjudication, then brought into a later adjudicative, rulemaking, or other suitable process;
4. Settlement Conferences in which parties come together on their own initiative or the Commission's, to discuss the possibility of settlement, specific settlement proposals, or the development of joint or agreed approaches such as stipulated evidence or issues lists; and
5. Prefiling discussions in which a company planning to file for a general rate increase may discuss with Commission Staff and potential intervenors the sorts of information that might be prefiled with the case, or released to parties prior to the filing, to reduce the need for discovery after filing.
C. Case Management Techniques Not Requiring Rule Amendment
The Commission encourages use of the following case management techniques in appropriate circumstances.
The Commission will consider using techniques of this sort on its own motion or on the request of any party. Joint requests from parties are especially encouraged.
1. Settlement Conferences. Each adjudication should include a mandatory settlement conference to provide the parties an opportunity to discuss settlement and to emphasize the Commission's support for settlement. The settlement discussions may be in conjunction with a conference addressing other issues and it may when appropriate be conducted with a minimum of formality, by telephone, on an agreed schedule.
A settlement conference should occur prior to oral hearing and early enough in the process to avoid holding -- -preferably, even scheduling -- a hearing if the parties accomplish settlement. Issues relating to a settlement conference should be addressed at the initial prehearing conference, if one is held. Settlement discussions will be undertaken among the parties, with non-advocacy Commission Staff or an ALJ available as needed and as appropriate to support settlement discussions. The election to pursue mediation may be an outgrowth of a settlement conference.
2. Telephone Appearance should be considered as an option in nearly every hearing or conference. Some settings where it may be particularly useful include argument on procedural matters; prehearing conferences circumstances where travel imposes a hardship on a party or a witness; when weather may make attendance difficult; when a matter requiring extensive travel that is expected to involve a limited number of witnesses and a limited volume of documentary evidence cannot be scheduled with one or more other proceedings, to avoid delaying it to a time when it may be jointly scheduled; and when all parties request or consent to electronic appearance. Television links should also be considered when available when cost-effective, and when the technology is suited to the requirements of the proceedings. Electronic attendance may be less suited or inappropriate in other situations -- for example, when documentary evidence will be distributed or considered.
3. "No-Hearing" or Paper Hearings in which a proceeding is decided on a paper record, by agreement of the parties or in a way to preserve the right of cross-examination provided in RCW 34.05.449;
4. Hearing Scheduling -- using scheduling in which prefiling of evidence is sequential but a single oral hearing is held, if that schedule is suitable for a particular reason in that proceeding. The request should be discussed with Commission Staff before the initial hearing session or prehearing conference;
5. Witness Scheduling in panels, when doing so makes sense in the context of the proceeding;
6. Evidentiary Rulings should exclude evidence that may be lawfully excluded as irrelevant, repetitive, or otherwise seriously problematic, to avoid the need to cross-examine and rebut evidence that the Commission would not seriously consider;
7. "Friendly" Cross-Examination should be limited to matters that could adversely affect the questioner's interests, to avoid repetition of direct evidence;
8. Order Conference to be held before or after entry of a final order, to allow clarification and technical corrections and to assure that compliance filings are consistent with terms of the order; and
9. Brief Adjudications which are allowed under WAC 480-09-500 and which can produce an expedited result with a minimum of formality. Early requests are encouraged, although conversion of a proceeding under RCW 34.05.070 is available at any suitable time.
D. Areas in which rules may be helpful or necessary
In some areas, the Commission believes that rules may be either necessary to accomplish change or helpful to guide participants in conducting business by setting out expectations and options.
To initiate discussion, the Commission will issue a preproposal statement of intent to promulgate rules in the following areas:
1. Exploring whether some limits should be put on discovery activity-
a. Providing a less onerous means of achieving review, of discovery disputes than the present process.
b. Identifying prehearing conference type processes to facilitate discussions among parties.
2. Expansion of the "FIFF" rule, WAC 480-09-520, to allow use of the statutory "Formal Investigation and Fact Finding" process in additional telecommunications proceedings under RCW 80.36.145.
3. Listing acceptable ADR techniques and stating broad guidelines for negotiations and mediation.
a. Examining whether specific guidelines for settlement conferences in a rule could help practitioners and the Commission, and specifying that while the Commission cannot order parties to settle, it may order parties to discuss settlement.
b. Stating guidelines for informal settlements, including specific alternative dispute resolution techniques that may be effective in supporting disputing parties efforts to reach agreement among themselves.
c. Identifying collaboratives as a specific kind of ADR and setting out guidelines for their conduct.
4. Formalizing motions for summary decision.
5. Exploring the effect of settlements that are not supported by all participants.
6. Requiring some documents to be filed in electronic form ("on disc") and exploring expansion of telefacsimile filing and electronic exchange of data.
7. Exploring whether specific rules are needed to conduct order conferences prior to or after entry of a Commission order.
8. Amending the Commission's evidentiary rules to do the following:
a. Emphasize Commission concerns about irrelevant, repetitive, or otherwise objectionable evidence.
b. Identify the use of witness panels as permissible when appropriate.
c. Articulate limits upon "friendly" cross--examination.
9. Case management techniques, including settlement conference; telephone appearance; paper hearings; hearing scheduling; witness scheduling; evidentiary rulings; and brief adjudications.
The Commission will also explore ways to mitigate extraneous limitations on parties' voluntary participation in ADR, such as lack of resources.
DATED and adopted at Olympia, Washington and effective this 22nd day of December 1994.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
SHARON L. NELSON, Chairman
RICHARD HEMSTAD, Commissioner
 This comment does not address or denigrate a company's power to request and to pursue rate changes, but reflects the theory underlying ADR that participants have equal power to decide whether to participate, to make proposals that will satisfy their own interests, and to decide whether to agree to proposals of others.
 While some parties may prefer to pursue only a global settlement, others may find it valuable to secure agreements on smaller matters and subsidiary issues.
 Collaborative discussions, however, may be an appropriate process by which to develop policies in a consensual environment.
 Because the Commission must act in the public interest and because it has limitations upon its own power to delegate authority, there are limitations, described in this statement, on using ADR in Commission matters. The use of ADR is subject to any pertinent statute or rule and to Commission participation or approval to the extent required. The Commission should be informed of the use of any ADR technique beyond negotiation and should have the opportunity to comment on its use. Parties should then report on the technique’s success.
 Effective mediation requires an element of knowledge of parties' tactics, interests and positions. The Commission recognizes that parties may not wish to disclose that information to a presiding officer or facilitator who is to preside or advise the commissioners regarding the matter. In some circumstances such disclosures could violate restrictions against ex parte contact. Apart from those restrictions, however, and short of what might be called "full-blown mediation", the Commission believes that there is a role for a more traditional settlement conference. The conference could be a springboard for assignment of a facilitator or mediator, acceptable to the parties, who will have no role in deciding or advising in the proceeding, when the parties and the Commission believe that process will enhance parties' ability to reach a settlement, will be consistent with principles regarding the use of ADR, and will be an effective use of resources.
 The Commission will also consider using tape recordings, rather than court reporters, in proceedings not involving extensive oral testimony.
 Compare the specific statutory process of formal investigations and fact finding authorized for certain telecommunications matters in RCW 80.36.145 and implemented in WAC 480-09-520, discussed below.
 Rules could be helpful in some areas in which they may not be absolutely necessary.
Contact Us | Site Map | Privacy Statement | Site Notice & Info | RSS | Edit this page in Notes