What Is Non-Adversarial Advocacy?

There is no provision in the Model Code that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversarial advocacy. In that study, I talked to collaborative lawyers and family lawyers who have a settlement-oriented practice. Those processes inform the type of advocacy expected and required. However, not all dispute resolution processes can be neatly packed into one category or the other, nor do all disputes involve sides that subscribe to the same approach to advocacy. In this post, I question whether it is the process that distinguishes adversarialness.