On June 11, 2015, the Massachusetts Collaborative Law Council
(MCLC) (www.massclc.org) celebrated the 15th anniversary of
collaborative law in Massachusetts. MCLC has grown from a loosely
organized group of approximately 20 practitioners to a 501(c)(6)
organization that has trained hundreds of attorneys, mental health
professionals and financial professionals in collaborative law at
an annual training attended by people from all over Massachusetts
and the world, including from as far away as England and Israel.
MCLC is the umbrella organization for 11 interdisciplinary practice
groups around the state focused on family law, probate and business
disputes. MCLC also provides an internship for law students from
New England Law | Boston to learn about collaborative law by
working directly with MCLC and collaborative law practitioners.
MCLC partners with other organizations such as the Massachusetts
Council on Family Mediation (MCFM), to provide education and
training that benefit the alternative dispute resolution (ADR)
professional community by increasing awareness of the many forms
ADR can take, and what tools and techniques are available to
alternative dispute resolution practitioners regardless of process
model.
The International Academy of Collaborative Professionals (IACP)
is celebrating this October in Washington, D.C., the
25th anniversary of collaborative law internationally.
From a fledgling organization in 1999, IACP now has more than 5,000
members worldwide from 27 countries (www.collaborativepractice.com). IACP provides
support and resources internationally from North America to as far
away as Europe, Latin America, Asia and the Middle East.
The definition of collaborative law has not changed since 1990,
when attorney Stu Webb of Minneapolis, Minn., envisioned a process
where both parties had to have counsel, but where the attorneys
were disqualified from appearing in court should the case not
resolve in the collaborative process. However, while the essence of
collaborative law has remained true in that these two requirements
remain the cornerstones of collaborative law, the practice of
collaborative law has grown and changed in many ways. These include
the use of an interdisciplinary team model in the collaborative
process as the preferred model in Massachusetts and many other
regions around the world; the passage in 2009 of the Uniform
Collaborative Law Act (UCLA) as approved by the Uniform Law
Commission, which has since been adopted in various forms in a
number of states and is pending in others (see http://www.uniformlaws.org/Act.aspx?title=Collaborative+Law+Act);
and the acceptance of Collaborative Law by courts, bar associations
and other professional organizations, including the American Bar
Association, which has a Collaborative Law committee as part of its
Dispute Resolution section.
There has also been recent interest in using collaborative law
in cases involving low and modest means clients, either pro bono or
at reduced fees, providing these clients with greater access to
legal services and the courts. "Access to justice" is a term that
is sometimes used to encompass such programs. Access to justice is
a critical component of our legal system. It is not limited to
providing the public with access to lawyers and courts. Rather, it
has a broader goal, which is to provide low and modest means
clients with the ability to access resources that allow them to
resolve their disputes in a variety of ways, including
ADR.
ADR has many benefits for people of means, such as control over
process and outcome, cost containment financial and emotional, and
often resolution of disputes in a shorter time frame than courts
are sometimes able to provide. Low and modest means clients can
also reap these same benefits, but access to justice does not come
easy. Clients of low or modest mean have additional challenges
beyond the obvious financial barriers to the legal system. They
also have language barriers, employment-related limitations and
child care obstacles, and they may not even have the ability to
travel to court.
Collaborative law is an ADR option for low and modest means
clients, which can help provide access to justice to those clients.
IACP has an Access to Collaboration Task Force, which, in 2012,
dedicated one of its publications to what IACP calls "Access to
Collaboration" (available to the public at https://www.collaborativepractice.com/professional/resources/access-to-collaboration.aspx).
In 2014 and 2015, IACP provided small grants to emerging and
existing "Access to Collaboration" programs, and has also created
materials to assist these programs in both design and
implementation. There are low and modest means collaborative law
programs in process in places like Pennsylvania (http://www.pittsburghprobono.org/Public_Legal_Services/Collaborative_Divorce_Law.asp),
Maryland (http://collaborativeprojectmd.org/), and
Florida. All of these programs use
collaborative law to provide low and modest means clients with
legal services they would not otherwise have, at no or low cost,
giving them access to justice in a meaningful way. There was even a
grant by IACP to an Israeli collaborative law practice group, which
used the grant to explore integrating collaborative law divorce
processes within multicultural low income communities.
In 2014 MCLC created an ad hoc Access to Collaboration committee
to explore the possibility of the creation of a collaborative law
program or programs here in Massachusetts for low and modest means
clients. In June 2015, MCLC was awarded an Access to Collaboration
grant by IACP, to be used toward the development of an access to
collaboration program.
MCLC has explored various models, including the possibility of a
court connected program, but also the possibility of partnering
with other organizations interested in access to justice. One
program model is the one-day model, which is already being used in
other jurisdictions in family law cases, including some court
connected programs. Clients would be screened for eligibility
(either by the court or the administrator of the program, depending
on whether court connected or not), and using the interdisciplinary
collaborative law model, would then be assigned collaboratively
trained legal counsel as well as a mental health professional
acting as case facilitator/coach. There would be a set block of
time that same day or on another assigned day for the "team" of
professionals and clients to resolve their dispute in the
collaborative law process. While a one-day model may require a
modified collaborative law process given the time and financial
constraints that may attach to any such program, the basic tenets
of the collaborative law process would not be compromised. The
already established low and modest means collaborative law programs
in other jurisdictions, such as California, which have used this
model have done so successfully. The one-day model has also been a
very successful model used in other ADR programs for low and modest
means clients, including mediation.
The success of a collaborative law program for low and modest
means clients requires legal practitioners to rethink existing
paradigms -- not just about litigation but about alternative
dispute resolution processes. To accomplish this, an openness to
expanding the array of ADR services available to include
collaborative law is necessary along with educating the courts,
professionals, and public about collaborative law as an ADR process
option. While change happens sometimes in small steps, it is
essential that lawyers and the legal community continue to be
creative in our thinking and continue to be mindful of the
importance of access to justice. The proliferation of collaborative
law in the last 25 years, and the recent development of access to
collaboration programs both nationally and internationally,
suggests that not only is there a continuing need for ADR services
for low and modest means client but that collaborative law can be
one of many ways to meet some of those needs.