No Dispute
The United States is often called the most litigious society in the world. Arthur Pearlstein, professor of law and director of Creighton University School of Law’s Werner Institute for Negotiation and Dispute Resolution, favors a change in course.
“Today’s law students and lawyers have to understand that most disputes are not resolved in court,” Pearlstein said. “Of all the civil cases filed in federal courts across the country, fewer than 2 percent go to trial. Going to court is a win-lose situation. Like war, it’s completely adversarial. Relationships get seriously damaged. Today, clients are demanding cost-effective, efficient ways of handling disputes, and that translates to alternative dispute resolution — ADR.”
This is an area in which Creighton’s Werner Institute has earned a national and worldwide reputation just three years after its official launch.
Among the impressive achievements already racked up by the Institute:
• In 2005, Werner introduced the Program on Health Care Collaboration and Conflict Resolution, the first university-based program designed to integrate health care issues with the practice of dispute resolution.
• In 2006, the Institute launched an interdisciplinary graduate program that, in two short years, has become one of the largest and most highly regarded in the nation.
• In 2007, the U.S. Federal Mediation and Conciliation Service tapped Werner to help develop a program aimed at bringing state-of-the-art dispute resolution systems to the American workplace in order to reduce conflict and boost employee morale and productivity.
• In 2008, the Institute hosted two international conferences and is working on several global initiatives, including collaborative efforts with Creighton’s prestigious Asian World Center.
“When I came here three years ago, the program was a blank slate,” Pearlstein said. “We basically started from scratch, designed a curriculum and got it approved. We just finished our second academic year and are going into our third year of the graduate program with 100 students which far exceeds expectations.”
In the area of dispute resolution, Creighton law school is now ranked No. 12 in the country among the nearly 200 law schools offering dispute resolution classes, putting it ahead of institutions such as Stanford University.
“The recognition is nice,” Pearlstein said, “but I don’t like to make too much of rankings. The big story is how much we’ve accomplished in such a short time.”
Established with a $4 million gift from C.L. Werner and his daughter, Creighton alumna and University Board member Gail Werner-Robertson, BA’84, JD’88, the Werner Institute for Negotiation and Dispute Resolution is currently the most richly endowed program of its kind in the United States. It offers a unique, interdisciplinary program leading to master’s degrees and graduate certificates and attracts students from a variety of fields as well as mid-career professionals seeking career enhancement. The Werner Institute aims to be a leader in advancing the field of conflict resolution while training a new generation of practitioners and scholars who will be responsive to the real, and often unacknowledged, needs of those in conflict.
Alternative dispute resolution has, in recent years, gained widespread acceptance among the general public and the legal profession as an alternative to litigation, and Pearlstein is a leading proponent. Prior to heading the Werner Institute, he served as general counsel and director of ADR and International Programs at the Federal Mediation and Conciliation Service in Washington, D.C.
Pearlstein is also an attorney with nearly 20 years of business and employment cases under his belt, and acutely aware of the high costs — in both time and money — of going to court. “I represented a lot of businesses,” he explained, “and I became more and more aware of how wasteful and counterproductive our litigation system can be, and how desperately we need to find alternatives that will have a positive impact on competitiveness, productivity and workplace morale.
“There are tremendous opportunities in ADR,” he continued, “and Creighton is poised to assume a leadership role in developing cutting-edge initiatives in alternative dispute resolution, working with the courts, with the bar and with a variety of businesses and organizations in Nebraska and surrounding states, as well as nationally and globally.”
To advance that goal, the Werner Institute created the Public Issues Collaboration initiative — PIC — the mission of which is to foster collaborative decision-making that helps avert costly, prolonged and unproductive disputes in public arenas. Brad Ashford, JD’74 — an attorney, business leader, Nebraska state senator and senior fellow in the Werner Institute — serves as PIC chair.
Pearlstein considers Ashford uniquely qualified for the job. “Brad is a giant of creative thinking and collaborative approaches who builds bridges between individuals and groups with widely divergent agendas.”
From its inception, the Werner Institute has had the benefit of a team of experts, and Pearlstein is quick to acknowledge their contributions. “While setting up the Institute in 2005, I depended on Professor Ron Volkmer, Professor Larry Teply and Professor Ed Birmingham — Creighton law school faculty members and authorities on mediation and negotiation. Their help was and is invaluable.”
Pearlstein also cites Jacqueline Font- Guzmán, Werner associate director and assistant professor on the conflict resolution faculty. “We hired Jackie in the middle of our first year, and she’s turned out to be a superstar. She’s a great mentor to students and a terrific manager. Her total comfort with other cultures and ability to engage with people in all walks of life have opened many doors. I don’t know how we would have done what we’ve done without her. She is a delight.” The Institute is also privileged to have Bernie Mayer, Ph.D., widely viewed as an icon in the world of conflict resolution, as a resident professor. “Bernie is one of the top names in ADR,” Pearlstein said. “Having him join our faculty was a great coup for us.”
“Conflict happens,” Pearlstein continued. “Effective and meaningful resolution of conflict, all too often, does not. As we look around our world — from fighting in the Middle East, to labor strikes, to divorce — we find conflicts that persist despite the painful costs and despite the fact that there may be a variety of possible resolutions that would leave the parties better off. Conflict resolution is about better outcomes, the need to listen to, understand, and engage differing positions.”
A perfect example is the Omaha Public Schools litigation dust up, which saw Omaha and other districts suing Nebraska for funding. “People weren’t communicating,” Pearlstein said. “The only ones talking were the lawyers and the media.” Through the Werner Institute, Pearlstein facilitated a dialogue between School Superintendent John Mackiel and Nebraska State Sen. Ron Raikes.
“They were perceived as enemies, but both men were public-service minded, and each had his own concerns about the needs of the schools and the needs of the state. In the dialogue we facilitated, they set aside their egos and engaged productively.” The discussions eventually led to the Legislature passing a law that distributed funds more equitably and saved Nebraska millions of dollars. “That outcome,” Pearlstein said, “is a huge success story.”
With parties in conflict increasingly using professional negotiation and dispute resolution to settle their differences, some predict that ADR will be among the fastest-growing professions in the early decades of this century. Creighton’s Werner Institute stands ready to help develop the next generation of practitioners, trained to improve how people work together and balance the needs of diverse groups within ever-changing environments. With an interdisciplinary foundation and a focus on collaboration and open inquiry, the Institute’s mission is consistent with Creighton’s tradition of social justice, responsible leadership and professional distinction. “The Werner program benefits from Creighton’s name and its network,” Pearlstein said. “This is a big plus.”
According to University officials, the Institute is an important step in Creighton’s future and attests to the momentum within the law school and the entire University. “Gail Werner-Robertson has been an inspiration from the beginning,” Pearlstein said. “Without her, there would be no Institute. Her father always told her to dream big, and she’s inspired me to dream big, too. Thanks to the generosity of the Werner family, we’ve had the resources to follow through. Now we’re on our way to being one of the top conflict resolution centers in the world.”
Werner Institute Hosts Conference on Health Care and Alternative Dispute Resolution
The American health care industry shows signs of ailing, according to many media and other accounts. There are concerns that hospitals are understaffed and the quality of patient care has slipped. Reports of costly billing errors and malpractice suits are on the rise. One suggested remedy? The application of collaborative techniques to help professionals from medicine and law, along with patients, consumer advocates and policymakers, give up their “Us vs. Them” mentality and find new ways of working together.
To that end, the Werner Institute for Negotiation and Dispute Resolution hosted an international conference this past June aimed at shifting the culture of health care from conflict, mistrust and avoidance, to collaborative engagement — the process of working together and not just side-by-side. Forum attendees learned techniques that foster improved communication and teamwork in an effort to create safer patient care, healthier workplaces, humane legal practices and compassionate healing environments.
According to Werner Institute Assistant Director Bryan Hanson, “The health care conference allowed the Werner Institute to showcase its expertise in the application of conflict management principles into health care settings. This is critical, because one of the major accrediting boards for health care systems is making it a standard to include conflict management programs in their day-to-day operations.”
ADR proponents maintain that litigation provides few of the results clients in disputes are seeking, such as an apology, change of behavior, a chance to tell their story, improved relationships, reconciliation or forgiveness. Money damages are not an adequate substitute. This is particularly true in health care disputes where emotions often run high.
The Werner Institute’s Program on Health Care Collaboration and Conflict Resolution is the first university-based program designed to integrate emerging health care issues with the practice of ADR. Pearlstein tapped Creighton alumna Debra Gerardi, BS’84, BSN’87, JD’92, a leading pioneer in the field, to oversee the launch of the program. Drawing from a community of practitioners and educators, the Institute provides professional development programs, academic courses, clinical training, research and dialogue, aimed to build productive relationships that do not become adversarial or contentious in the midst of illness or injury.
The International Conference on Chaos, Complexity and Conflict — another forum hosted by the Werner Institute this past summer — was the first of its kind to marry the application of chaos theory and studies of complexity and emergence to conflict resolution. When describing the two conferences, Bernie Mayer, Werner faculty member, said, “These meetings brought together practitioners, researchers and theorists in a creative dialogue that looked at issues on the cutting edge of both conflict theory and conflict practice.”
“Werner is more than just a graduate program,” Mayer continued. “It combines a commitment to furthering practice, education and theory building. We also are committed to teaching people the very best about conflict intervention generally, and to helping them develop a specific, substantive area of expertise as well. Furthermore, we operate not as a set of individual practitioners but as a team within a dynamic, collegial framework.”
Hanson considers the Werner Institute to be both an academic program that breaks new ground in the education of future conflict resolution professionals, as well as a service provider to the Omaha community in areas of dispute resolution system design, deliberation services and organizational assessment. “The Institute is very blessed to have some of the most well-known experts in the field of conflict resolution as core and adjunct faculty,” he said. “We provide a practical based curriculum in our master of science degree program that provides concrete skills for our graduates, allowing them to develop a strong foundation of experience before entering the field.”
“The Werner Institute,” added Mayer, “is creative, innovative, solid, grounded in practice but committed to exploring and challenging the frontiers of conflict theory. It is also fun.”
About the author: Nogg is a freelance writer in Omaha.