FERC Filings
SYMPOSIUM ON PROCESS AND REFORM: COMMISSION COMPLAINT PROCEDURES
ADR MECHANISMS MUST BE WELL SUITED TO THE COMPLAINTS ASSIGNED TO THAT TRACK.
The Working Group concluded that ADR mechanisms "can be an important part of the Commission’s dispute resolution processes." (At page 10) EPSA agrees, with certain caveats. While EPSA reserves the right to file additional comments on this issue in response to any rulemaking the Commission might issue, EPSA beliefs the following comments should be considered by the Commission in shaping any rulemaking on this issue.
First, ADR mechanisms do play an important role in the resolution of commercial disputes. Commercial parties are generally interested in and familiar with procedures that allow for the prompt and inexpensive resolution of disputes. Our concerns focus in two areas. First, given the limited experience and body of decisional guidance the electric power industry has had with the Commission’s open access tariffs, assignment of some disputes to mediators or arbitrators outside the Commission may delay rather than expedite dispute resolution. While "purely" commercial disputes may be appropriate for ADR treatment, the industry still needs, and responds to, Commission guidance.
Second, EPSA is concerned that the ADR process, particularly with extensive appellate procedures incorporated, may actually delay and complicate dispute resolution. As noted above, commercial disputes require prompt and decisive resolution. EPSA is concerned that an ADR process which attempts to allay fears about the use of arbitration and mediation by creating numerous grounds for review may actually result in a dispute resolution process which is more cumbersome, time-consuming and expensive than the current one.
Thus, EPSA urges the Commission to narrowly define, by issue and dollar limit, the type of case assigned to outside ADR on Track 2. Where appropriate cases are referred to outside ADR providers, the grounds for appealing those decisions should be limited and any appeals should be decided promptly. Additionally, the Commission should carefully consider whether existing Commission staff might be trained to conduct certain ADR mechanisms, thus ensuring that Commission guidance shapes the outcome of the dispute.