Alternatives to Litigation Update July 1994 Steven Weissman Program Coordinator In 1993, the Commission began an ongoing discussion with those who practice before this agency about ways to improve the decision-making process through the use of techniques other than litigation. Prime, among our objectives is the desire to eliminate obstructions to settlement, employ techniques that encourage creative solutions, and improve the quality of settlements. Thus far, the conversation has consisted of two Commission-generated discussion papers, three full-day workshops, two rounds of written comments, and a full-panel Commission hearing. The hearing (held October 10, 1993) resulted in a variety to concrete suggestions. Those suggestions formed the basis for a 1994 action plan, which was adopted by the Commission at a subsequent full-panel meeting (held April 6, 1994). The purpose of this paper is to let you know what the Commission plans to do in this next few months and to solicit your continuing participation. Alternatives to Litigation Guidelines Many of you asked the Commission to prepare guidelines that parties could use to start a new negotiating process or help with one that is already underway. You told us that adherence to the guidelines should be voluntary, that they should define relevant terms, provide a standardized confidentiality agreement and offer a variety of paths to agreement. Shortly, we will distribute draft guidelines for comment. If there is sufficient interest, we will convene a workshop to revise the language. Finally, the guidelines will be submitted to the Commission for its approval through resolution. Case Management Statement Rule The Commission has asked the staff to prepare, for its approval, a draft amendment to the rules of practice and procedure requiring parties to contentious cases to meet and confer on a number of prehearing issues: - 1 - 1. Identification of facts and issues in dispute 2. Applicability of all techniques to resolving these disputes 3. Proposed schedules for discovery and hearings This rule would ensure that parties talk to each other prior to hearings and address the potential for settlement, where appropriate. The staff plans to release a proposed rule this summer. Customer Complaints Workshop II At our first workshop on Alternatives To Litigation, many people asked us to hold a separate workshop focussing on the resolution of disputes between utilities and individual customers. We held one such workshop last September which identified a number of specific actions the Commission could take. Within the next few weeks, we will issue a follow-up discussion paper listing those proposed actions and schedule a second Customer Complaints Workshop. Orientation and Training The Commission has asked the staff to hold periodic orientation sessions for practitioners discussing optional means of resolving disputes and describing the services available through the Commission staff. In addition, periodically, the Commission will provide negotiation, facilitation and mediation training for the Commission staff. Public Advisor's Office Action Agenda The Commission has asked the Public Advisor to prepare a plan designed to increase and improve interest group representation in Commission proceedings. The plan will focus on new Notice Procedures, outreach to potential intervenors and a broader role for the Public Advisor with an emphasis on: - finding effective intervenors to represent affected groups - helping intervenors to develop strategies for participation - providing reproduction, document retrieval and mailing assistance for under-funded intervenors - 2 - - investigating the problems underlying individual consumer complaints - providing state-wide training sessions for intervenor groups The Public Advisor expects to present his agenda to the Commission later this summer. Assessing the Adequacy of Representation The Commission asked the Administrative Law Judge Division to prepare procedures to assure that, early in a given proceeding, the assigned ALJ will attempt to identify critical issues and interests at stake and, where appropriate, issue a ruling stating whether or not significant interests are unrepresented. Clarifying DRA's Role The Commission has asked the Director of the Division of Ratepayer Advocates to create a policy document expressing DRA's responsibilities in responding to issues raised and requests made by other parties attempting to represent the interest of ratepayers. Workshop and Negotiation Support Center The Commission has asked the Executive Director assign to an office or individual within the agency the responsibility to assign rooms, procure equipment and supplies, provide notice, make signs and provide other organizational services needed to convene workshops or negotiation services. The goal is to make it at least as easy too sit down to talk and it is to hold a hearing. Discovery Rules The CPUC does not have formal discovery rules. The lack of clear rights and responsibilities related to the exchange of relevant information can undermine the ability of parties to enter into sginificant negotiations. The Commission has asked the staff to prepare draft discovery rules. We anticipate releasing these for informal comment and convening a regulatory- negotiation process to refine the draft rules as needed. Thereafter, the usual formal rulemaking process would be used to adopt discovery rules as part of the Rules of Practice and Procedure. - 3 - Intervenor Funding Reform The current intervnor funding process may undermine interest-based negotiations. In our earlier workshops, many of you expressed an interest in pursuing new approaches. The Commission has yet to determine that the intervenor compensation statutes or should be revised, but it has asked me to convene an Intervenor Funding Consensus Process to explore alternatives. I am hoping to solicit your involvement later this summer. Just as your thoughts were critical to the development of this action plan, your continued involvement is needed to ensure that any resulting changes best reflect the interests of those who practice before the agency. We will automatically be sending out separate mailings to provide you with information relevant to many of these new projects. However, I would benefit in advance from hearing of your interest in any of these subjects. Please send me a note, either by regular mail, or by E-mail over Internet if you would like to be involved in a particular project. I would value any new ideas you may like to contribute. Regular Mail: Steven Weissman Administrative Law Judge California Public Utilities Commission 505 Van Ness Avenue San Francisco, CA 94102 Internet: saw@cpuc.ca.gov - 4 -