FERC Filings
SYMPOSIUM ON PROCESS AND REFORM: COMMISSION COMPLAINT PROCEDURES
IN A COMPETITIVE MARKET, DISPUTE RESOLUTION MUST BE SWIFT AND DEFINITIVE.
The entire purpose of the Working Group’s efforts was to propose mechanisms to streamline the Commission’s dispute resolution processes. All parties agreed that the new commercial markets require efficient and workable rules to resolve disputes quickly and fairly. In keeping with these themes, there are certain aspects of the Recommendations which EPSA believes require further comments.
First, the thirty-day mediation process should not unduly delay the resolution of complaints arising out of the shorter-term markets. In its Recommendations, the Working Group stated that the mediation procedures should not apply to complaints "seeking expedited relief on the grounds of irreparable harm." This is an extremely important point to EPSA. As short-term, hourly, daily and weekly, markets develop, even an thirty-day delay may be untenable. Market participants must have the ability to access the Commission’s dispute resolution process to remedy these complaints in a timely manner.
As EPSA pointed out in Comments filed in this docket on March 24, 1998, workably competitive markets require prompt dispute resolution procedures. After the fact money damages do not adequately compensate parties when business opportunities are irrevocably gone and market liquidity is lost. Therefore, EPSA urges the Commission to take a broad view of the cases where market participants need to seek expedited relief.
Second, for the mediation process to be effective, parties must have a strong incentive to meaningfully participate. If a respondent simply views the mediation period as a waiting period, not only will the benefits of mediation be lost, but a thirty day delay in the resolution of the dispute will have been institutionalized. This result would be contrary to the goals of the Working Group. However, the Working Group members could not agree on the appropriate mechanism to ensure that parties participated meaningfully in the mediation process and presented (on pages 5 and 6) three alternatives for the Commission’s consideration. EPSA endorses Alternative B and urges the Commission to adopt that procedure.
Under Alternative B, if a party fails to participate in the mediation process, the complainant may ask the Commission for a default judgment against the respondent. Where the Commission finds good cause for the respondent’s failure to participate in the mediation process, it may return the parties to mediation. However, where the respondent simply failed to participate, the Commission would issue a default judgment, including costs, against that respondent. EPSA submits that this approach balances the respondent’s due process rights while sending a clear signal that the Commission intends the mediation process to be used.