Access to justice - is a collaborative approach the answer?

08 Oct 2014

Pro-bono collaborative schemes around the world operate differently but share common outcomes – they help low-income clients, they develop practitioner experience, and they promote the collaborative process to the wider community. Christabel Clappison looks at the potential role of the collaborative approach in promoting access to justice in a post-LASPO landscape.

In the post-LASPO landscape, where if possible the court should be avoided, it is thought that the collaborative process could now play a prominent role in resolving legal disputes for low-income individuals in the area of family law.

The collaborative process may be a relatively new way of dealing with family disputes in the UK, but, overseas, particularly in America and Australia, it has become an increasingly popular alternative to the cost and complexity of the court system.

In 2011 the International Academy of Collaborative Professionals (IACP) launched a programme to support and promote the delivery of collaborative practice services to low income families. As part of their research, they discovered that many existing collaborative practice groups, across the world, were particularly interested in developing pro bono programmes to help individuals and families whose incomes exceed the threshold for legal help yet cannot afford legal representation.

This article will examine the different approaches to pro bono collaborative programmes and how they can benefit not only low-income families but also collaborative professionals and the wider community.

A time-limited pro bono programme

The IACP discovered a collaborative practice group in California that undertakes pro bono collaborative cases with the aim of resolving any family matter within a very limited time scale.

In the appropriately titled “Dispute Resolution Day” programme, parties are assigned a team with a minimum of three professionals, chosen on the basis of the parties’ needs and the complexity of the issues involved. The collaborative team work together with both parties in a joint effort to reach a satisfactory settlement only six hours after the initial meeting.

With 30 out of 32 cases resulting in an agreement, this programme has been extremely well received by the parties, the professionals and the court. Catherine Conner, a collaborative practice trainer, attributes the success of such an efficient and effective programme to the advanced preparation of a well-co-ordinated team who respect and comply with the recommended agenda.

A case-by-case approach

Contrastingly, a practice in Rochester, New York, prefers to take a case-by-case approach as to how to involve professionals and assess fees for parties.

David Murch, a founding member of the Collaborative Association in Rochester, believes a more flexible approach works more effectively than adhering to a streamlined process with a restrictive time scale.

He and his collaborative colleagues prefer to reach out to professionals with whom they enjoy working and, in low-cost cases, fees are determined by a financial neutral. Under this arrangement, however, professionals accept a case without any guarantee that the time they allocate to it will be proportionate to the agreed fixed fee. Murch considers a fixed fee, even at a reduced rate, to be invaluable in ensuring a client’s commitment to the collaborative process. He believes people value what they pay for and tend not to look at ‘volunteerism’ as having equal value. For him, a subsidised fee is a small price to pay for the experience and skills he gains every time he works collaboratively.

Pro bono and the wider collaborative community

The mission in Maryland is to provide families of modest means access to the full benefits of the collaborative process either through the use of pro bono or on a subsidised fee basis. Similarly to the collaborative process in Rochester, lawyers in Maryland are offered free, continuing legal education to undertake the collaborative training and in return, they agree to take on pro bono cases.

This somewhat mirrors David Murch’s argument that the increase in the number of cases through the pro bono programme will provide more opportunities for professionals to gain further experience in dispute resolution.

Is there a place for a pro bono or legally aided collaborative scheme?

Earlier this year England & Wales saw a significant legislative push towards family mediation, which is now one of the few areas of family law still eligible for legal aid. Is there an argument for the creation of a collaborative pro bono or legally aidedscheme in addition to the mediation services already available. Brisbane Family Law Centre’s Clarissa Rayward, a collaborative practitioner, believes there is. For her, the design of the collaborative process, with its team of professionals, its emphasis on healthy relationships, and its focus on the future immediately differentiates it from other dispute resolution options.

Rayward expects that the benefits a pro bono programme can offer, such as financial neutrals, health professionals and child specialists, will be hugely popular with families. The exposure of such schemes would undoubtedly assist in promoting the collaborative process within the community and help practitioners to reach a wider range of families, including those with limited economic means.

As suggested by both David Murch and Clarissa Rayward, these pro bono programmes offer opportunities for practice that would simply not otherwise exist. With a greater number of cases available, professionals have more opportunities to take on pro bono cases and subsequently develop key skills which are transferrable to fee-based collaborative cases.

As highlighted earlier, with no-cost or low-cost programmes there are limitations. Professionals have found that learning how to manage a case within those limits has assisted them in developing a more streamlined approach to the collaborative process. Although there is less urgency in fee-based cases for professionals, there are costs, and clients are looking for value for money in what is becoming an increasingly competitive market. Pro bono cases challenge practitioners to find the balance between team assistance and client accountability, which could essentially make the collaborative experience more attractive and affordable for fee-paying clients.

Collaborative teams working together on pro bono cases may mix practice group members with prospective members, enabling the interaction among professionals who might not otherwise cross paths. The development of relationships among collaborative professionals through pro bono networking can therefore also serve to strengthen the collaborative community.

Most importantly however is the awareness within the community that is generated by all modest-means programmes. Every successful collaborative case creates the possibility for spreading the message of the collaborative movement.

The varied and diverse approaches to how these pro bono schemes operate highlight the versatility of the collaborative process. It is quite evident that there is no one pro bono collaborative programme that should be held out as a “model”. Rather, each programme should be designed to fit the circumstances, needs and resources of the community in which it is operating.

There does, however, remain one consistency across all pro bono collaborative schemes: their ability not only to benefit families, but also to develop the collaborative practice, its professionals and the community at large.

It is hoped therefore that the success of these programmes will inspire other collaborative practitioners, lawyers and practice groups to develop pro bono programmes within their own communities and thus promote the key advantages that the collaborative process has to offer.