FERC Filings
ELECTRIC INDUSTRY DISPUTE RESOLUTION WORKING GROUP RECOMMENDATIONS AND PROPOSED PROCEDURES FOR DISPUTE RESOLUTION
PRE-COMPLAINT PROCEDURES
Dispute Resolution Task Force Hotline -- (Voluntary Procedure)
The Dispute Resolution Task Force Hotline would be similar to the existing Enforcement Hotline. Access to this voluntary procedure would be available at any time during a dispute up to the filing of a complaint. 1
Aggrieved parties are encouraged to contact the Dispute Resolution Task Force Hotline either unilaterally or together with the other parties in an effort to resolve potential complaints.
The Dispute Resolution Task Force Hotline should be staffed by personnel trained in the electric area and familiar with the relevant Commission precedent.
Unless the aggrieved party has requested that its identity be kept confidential, Task Force staff may conduct conferences or conference calls involving all parties.
Mediation (Mandatory Procedure/Fifteen Month Trial Period)
The following mediation procedures do not apply to complaints seeking to change filed rates, terms and conditions of service or seeking expedited relief on the grounds of irreparable harm.
For a fifteen month trial period, prior to filing a complaint with the Commission the complaining party must either initiate mediation as set forth below or use other ADR procedures specified in an applicable contract, tariff or rate schedule at complainant's option. Mediation shall be initiated by serving on the respondent (with a copy filed with the Division of Dispute Resolution (DDR) for informational purposes) a notice briefly stating the nature of the dispute and requesting that the respondent contact the complaining party within ten days to establish mediation procedures. Notice must be served by same-day or next-day service, with proof of actual service upon an appropriate senior officer of the respondent and any person designated for receipt of service under any applicable contract, tariff or service agreement.
Within seven days of the respondent’s reply to the notice of mediation, DDR or the designated mediator shall initiate a conference between the parties concerning mediation.
Where the parties agree, mediation may be conducted either by a neutral who is not employed by the Commission or under the Commission’s auspices. In the former case, at the joint request of the parties, the Commission’s Dispute Resolution Task Force or other Commission staff may be involved in any aspect of the mediation, either by telephone or in person. The Working Group members will submit specific proposals for structuring the mediation in other cases.
Mediation shall occur in a location to be agreed to by the parties. If the parties fail to agree, the mediation will be conducted in Washington, D.C.
The Working Group agrees that appropriate mechanisms are needed to ensure that parties meaningfully participate in the mediation process. However, members of the Working Group could not fully agree on what those mechanisms should be. For Commission consideration, we suggest three alternatives.
Alternative A:
If the respondent does not respond within ten days of receiving the notice, the complaining party may initiate binding arbitration by serving on the respondent and the Commission a notice of binding arbitration stating that there was no response to the mediation notice and that the respondent must agree to commence arbitration within ten days.
If the respondent agrees to mediation within 10 days of receiving the notice of binding arbitration, the arbitrator shall order the parties to return to mediation.
If the respondent does not commence the mediation process within ten days of receiving a notice of arbitration, the aggrieved party shall be entitled to an arbitration award. The award shall be filed with the Commission.
The entire pre-complaint mediation process will not exceed thirty days, unless agreed otherwise by the parties.
Alternative B:
If the respondent does not respond within 10 days of receiving the notice to mediate, the complaining party may serve on the Commission and the respondent a request for the issuance of a default judgment, stating that there was no response to the mediation notice. If the Commission determines that the respondent had good cause for a delay, it may refer the dispute back to the mediator. Otherwise, the Commission shall issue an order in the form of a default judgment on behalf of the aggrieved party within 14 days of the filing of the request. The order shall include the award of the aggrieved party's expenses incurred in attempting to mediate the dispute, in addition to compensation for the actions of respondent subject to the default judgment.
The entire pre-complaint mediation process will not exceed thirty days, unless agreed otherwise by the parties.
Alternative C:
If the respondent fails to respond to the initial request to mediate within seven days of its receipt, the aggrieved party shall send a follow up notice within two business days specifying its intent to terminate mediation efforts and institute formal complaint procedures before the Commission. If the respondent fails to respond to this second notice within five days of receipt then the aggrieved party may terminate attempts at prefiling mediation.
The aggrieved party shall attach to its complaint proof of actual service of its two notices upon the respondent. The Commission may then consider respondent’s failure to participate in prefiling mediation as it deems appropriate in processing and resolving the complaint.
The entire pre-complaint mediation process will in no event exceed thirty days, unless agreed otherwise by the parties.
Not later than thirty days after the receipt of the letter initiating mediation, unless otherwise agreed by the parties, the mediator shall file with the Commission and serve on the parties a statement setting out: (1) the issues that have been resolved including any stipulation of facts; (2) any stipulation or recommendation as to what issues must be resolved through formal procedures; and, (3) if issues must be resolved through formal procedures, the positions of the parties and the mediator’s recommendation concerning which formal procedure to recommend to the Commission.
Either party may within seven days thereafter serve on the other party and file with the Commission a statement setting out any disagreement with the mediator’s statement and the basis for that disagreement.
The Working Group recommends that the Commission assess the effectiveness of the pre-complaint mediation process after one year’s experience and issue a report within one month thereafter, providing opportunity for public comment, before deciding whether to reauthorize the process.