Energy disputes are usually complex and very expensive to litigate, so those in the traditional oil and gas industries have used arbitration and mediation successfully for years. Most contracts in the energy sector have ADR clauses, and many of those are “step agreements” providing for negotiation between officers of the companies and then mediation as a prerequisite for arbitration. Recently, there has been an increase in the use of ADR to resolve disputes involving alternative energy as well. These disputes come in a wide variety, involving both contract and tort claims. Some recent cases include the alleged breach of a Power Purchase Agreement between a geothermal company and a utility, a dispute between the owner and a contractor engaged in constructing a large ground-mounted photovoltaic-panel solar energy project, two solar companies negotiating over rights of way for transmission lines, disputes over intellectual property and alleged poor construction of solar panel arrays or underperforming systems.
There are some special concerns to consider when these parties go to mediation. First, it is likely that experts can be of assistance. Experts may provide information on the specifications for the manufacture of a solar tracker system or may assist in a construction dispute. Second, certain regulatory agencies may be at least peripherally involved, and an attorney or someone else familiar with the workings of the agencies may be very helpful. In a recent case, an action by the Bureau of Land Management pushed two solar companies into negotiations. Knowledge of the Bureau’s operations was important to resolution.
Originally published in LAW.COM on May 15, 2014.
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