1. (1) As soon as it appears, based upon exploratory discussion with another party or potential party, that settlement of an issue or issues in a pending proceeding is possible, the utility shall file, with the secretary, a notice of impending negotiation. The notice shall contain the following:

   1. (i) a general description of the issues that may be settled;
   2. (ii) a list of the persons or parties to the negotiations; and
   3. (iii) a certification by a duly authorized representative of the utility that all appropriate persons and parties have been or will be notified of the pendency of negotiations in a manner so as to permit a reasonable time for preparation.

2. (2) The Administrative Law Judge assigned to the case shall review the notice to ensure all persons who reasonably should have been notified of the pendency of the negotiations have been afforded a reasonable opportunity to participate. The Administrative Law Judge may take any action necessary to protect the rights of persons participating or desiring to participate in the negotiations or who reasonably should have been notified of the pendency of negotiations. The Administrative Law Judge shall report the results of the procedural review to the commission.

   (b) Notification required for settlement discussions in pending proceedings involving small utilities.²

   The procedures for notification of impending negotiations in cases involving small utilities shall be the same as set forth in subdivision (a) of this section except, that if an Administrative Law Judge has not been assigned to the proceeding, the director of the appropriate division will carry out those responsibilities assigned to the Administrative Law Judge in paragraph (a)(2) of this section.

   (c) Notification required for settlement discussions in anticipation of a formal proceeding.

3. (1) In the event the potential to settle issues between adverse entities arises outside the context of a formal proceeding or in anticipation of a formal filing, a utility shall file a notice of intention to negotiate with the secretary and shall give notice to all persons who participated in either of the subject utility's two most recent proceedings of the same or similar type as that in which the settlement negotiations are proposed and to any other person reasonably known to have an interest in the outcome of negotiations and can reasonably be expected to engage actively in the negotiations. The notice shall contain the same information as required by paragraph (a)(1) of this section.
4. (2) The utility shall be responsible to determine the list of potential parties and, in the event of uncertainty, may seek guidance through the secretary's office.

5. (3) The responsibilities outlined in paragraph (a)(2) of this section shall be carried out by the Administrative Law Judge, if one is assigned, or by the director of the appropriate division, if an Administrative Law Judge is not assigned.

   (d) Confidentiality of settlement discussions.

   No discussion, admission, concession or offer to stipulate or settle, whether oral or written, made during any negotiation session concerning a stipulation or settlement shall be subject to discovery, or admissible in any evidentiary hearing against any participant who objects to its admission. Participating parties, their representatives and other persons attending settlement negotiations shall hold confidential such discussions, admissions, concessions, and offers to settle and shall not disclose them outside the negotiations except to their principals, who shall also be bound by the confidentiality requirement, without the consent of the parties participating in the negotiations. The Administrative Law Judge assigned to the case, or the director of the appropriate division if no Administrative Law Judge has been assigned, may impose appropriate sanctions for the violation of this subdivision which may include exclusion from the settlement process.

   (e) Confidentiality in mediations.

   The confidentiality provisions set forth in subdivision (d) of this section shall apply to a neutral and any agent or employee of the Department of Public Service participating in a mediated proceeding. A mediated proceeding is any process in which an alternative dispute resolution technique is used to resolve an issue in controversy, where a neutral may be appointed and specific parties participate. In particular, any oral or written communication prepared for the purpose of a mediated proceeding (mediation communication), shall not be required to be disclosed. A written agreement to enter into a mediated proceeding or reached as a final result of such proceeding, or any communication the parties agree is public information, is not a mediation communication.

(a) Notification required for settlement discussions in pending proceedings involving large utilities.¹