Collaborative law for low and modest means clients

Issue August 2015 By Karen J. Levitt

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.