Report of the Alternative Dispute Resolution Committee*

Article excerpt

The Alternative Dispute Resolution (ADR) Committee monitors regulatory actions, court decisions, and legislative initiatives that may impact energy practitioners and their clients. This report provides a summary of some key ADR developments and proceedings in the energy industry through January 2004. The following topics are covered in this report: (1) recent Committee activities; (2) activities, outreach, and cases at the Federal Energy Regulatory Commission (FERC); (3) ADR at state commissions; and (4) ADR in the courts, at the Nuclear Regulatory Commission, and private ADR.

I. SUMMARY OF RECENT COMMITTEE ACTIVITIES

Between April 2002 and January 2004, the ADR Committee held a series of luncheon meetings and sponsored a panel at the Energy Bar Association's Annual Meeting on "Alternative Dispute Resolution at FERC."

The first in the series of ADR luncheons featured a presentation by Chief Administrative Law Judge (ALJ) Curtis L. Wagner, Jr. on the ADR processes used by the FERC's ALJs. Chief Judge Wagner explained the procedure for requesting an ALJ to mediate a FERC-jurisdictional matter between parties, and discussed the benefits gained from engaging in ADR. ALJs Bobbie McCartney and Peter Young discussed the different ADR techniques they used in the Southeast and Northeast Regional Transmission Organization mediations ordered by the Commission.

The second luncheon was "Getting to Agreements at the FERC." William Froehlich, Lead Counsel, Office of the General Counsel (OGC), Administrative Litigation, FERC, and Richard Miles, Director of Dispute Resolution Service (DRS), FERC, discussed the pros and cons of the ADR techniques used by their respective groups. Steven Rothman, Senior Counsel, Market Oversight and Investigations (OMOI), FERC, moderated the panel discussion and commented on the ADR techniques employed by the Enforcement Hotline. As a follow-up, Steven Rothman led an interactive discussion on using the FERC's Enforcement Hotline.

Next, the ADR Committee hosted a "National Energy Arbitration Panel" that presented an overview of using arbitration to resolve energy disputes, discussed the pros and cons of using arbitration as opposed to other forms of ADR techniques or litigation, analyzed the differences in handling energy disputes through a sole arbitrator versus a three-person arbitration panel, and discussed the party-appointed arbitrator's legal and ethical responsibilities.

As a follow-up to the "National Energy Arbitration Panel," P. Jean Baker, Vice-President of the American Arbitration Association (AAA), discussed the following topics:

1. How do arbitration clauses of several Regional Transmission Organizations (RTO) or Independent System Operators compare?

2. What kind of energy disputes are appropriate candidates for arbitration, as opposed to litigation or other forms of alternative dispute resolution, and why?

3. How does arbitration compare to other forms of alternative dispute resolution?

4. How does one select a knowledgeable and qualified energy arbitrator from AAA?

5. Under the AAA Commercial Arbitration Rules, what are the differences in handling energy disputes through a sole arbitrator versus a three-person arbitration panel; and

6. Under the AAA Commercial Arbitration Rules, what are the partyappointed arbitrator's legal and ethical responsibilities to uphold the positions of the party that appointed him or her as opposed to the arbitration process itself?

The ADR Committee sponsored a primer at the Annual Meeting on how to choose the ADR process that best suits a client's particular needs in resolving a contested issue before the FERC. ALJ Bobbie McCartney, William Froehlich, Kasha Helget, and Steven Rothman made presentations.

Finally, the ADR Committee hosted a roundtable discussion on the relative success of various ADR activities at the FERC. The Panelists were Steven Shapiro (of the FERC's Dispute Resolution Services), Barrett Hawks, Steven Rothman, and Elizabeth Whittle. …