What are the differences between adversarial and inquisitorial system of dispute resolution? The essentiality of a law court is dispute resolution. Hence it is the primary duty of the court to resolve and settle disputes that exist between individuals and the government through fact finding and the interpretation of the law.
In resolving disputes, the court has over time evolved adjudicatory and non-adjudicatory methods of dispute resolution. These non-adjudicatory methods include: Arbitration, reconciliation, conciliation, and mediation. While the adjudicatory methods are the adversarial and inquisitorial system. This article focuses on the adjudicatory method of dispute resolution (Adversarial and inquisitorial) and the differences which exist between them.
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Adversarial System of Dispute Resolution
Basically, the adversarial system is a system whereby parties appear as adversaries and engage in contentious arguments with each other, accusing one another as the cause of the dispute. This is the reason why it is called adversarial or accusatorial system.
The adversarial system can also be defined as a system whereby each party to a case is represented by advocates before an impartial judge who determines the truth or judgment of a case based on the preponderance of the arguments and evidence before the court.
In order to tender evidence which will help your case, each party in the adversarial system is obliged to bring witnesses and present his evidence in the most favourable manner to his case. Each witness establishes material evidence through the process of Examination in chief, then each witness will be cross examined by the adverse party in order to discredit the evidence of such witness and strengthen their case. After cross examination, the party who called the witness is allowed to conduct a re-examination so as to give the witness the opportunity of explaining some inconsistency in his testimony exploited by the adverse party in their cross-examination.
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Advantages of the adversarial system
The following are the advantages of the adversarial system:
1. It is fair, and less prone to abuse as the judge decides a case based on the evidence adduced before him and argument canvassed by the parties. So therefore, it is impossible for the judge to extract any other fact outside what has been established by the parties or for such judge to abuse his position by being partial to one party.
This ensures a fair judgment from the judge based solely on the proceedings in court between both parties, without any addition or subtraction. And where the judge perverts’ justice, the decision of that judge may be challenged on appeal, reversed, quashed or ordered for retrial in order to ensure fairness.
2. The adversarial system gives both parties an equal right to fair hearing, which is a fundamental human right enshrined in Section 36 of the Nigerian constitution.
3. The adversarial system allows both parties to support their positions. Generally, the objective of the adversarial system is to present all the facts of the case before the court, and for the judge to decide who should be held responsible. Thus, in order to present all facts, parties are allowed to support their position and this is usually done through witnesses and presentation of evidence.
4. The adversarial system enhances the development of law as lawyers in this system have a greater degree of control over the case, so therefore may come up with a legal argument which is novel to the court, and will therefore lead to the evolution of a principle of law to govern that issue.
Disadvantages of the Adversarial System
1. It may lead to injustice. The adversarial system often results in injustice as it is a system where the rich and those with the best lawyers are likely to win. Also, plea bargaining prevalent in this system result in injustice, as the accused would not be charged for all the offence he has committed, but a reduced term or charge.
2. The adversarial system is difficult to access for the poor due to the social and economic conditions in the judicial system of the adversarial method
3. The adversarial system encourages time wasting. Little wonder a case may last for many years in court.
4. The Time wasting in this system impairs fact finding, as a case many last for so many years in which a very important witness may have died or relocated to another jurisdiction, and in the case where such witness is still alive, he or she may not be able to fully remember and recollect all the facts of the case.
To understand what the adversarial system is better, I strongly encourage you to check out the video below. It explains what the adversarial system means.
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Inquistorial system of Dispute Resolution
An inquisitorial method of dispute resolution is a method whereby the judge is mandated to investigate and discover facts of a case in dispute, while simultaneously representing the interest of the state.
Advantages of the Inquistorial System
1. There is speedy investigation and determination of a case, as most often time is prescribed for the judges to conclude the case. Therefore, making it impossible for such judge to entertain delays in the case.
2. The inquisitorial method is less formal, and less expensive as the cost of an action is minimal.
3. In the inquisitorial system, there is equal access to justice as the determination of a case is not dependent on how good your lawyer is, but rather on the efficiency and investigative capability of the judge or the necessary adjudicating body.
Disadvantages of the inquistorial System
1. In the inquisitorial system there may be miscarriage of justice resulting from hasty trial, as the judge or an investigating body may be induced to ignore certain facts in a bid to meet up with its deadline.
2. Most often the inquiries are done in camera, so therefore making it unable to be scruntized by the public.
Kindly watch the video below for a better explanation of the inquisitorial system of dispute resolution. Trust me, you will enjoy it‼️
Differences Between Adversarial And Inquisitorial System of Dispute Resolution
The following are the differences which exist between the adversarial and inquisitorial system of dispute resolution:
The adversarial system aims to settle disputes through the arguments of advocates for the parties to a case, while the inquisitorial system aims to settle disputes through the extensive investigation and examination of all evidence by the judge.
The doctrine of judicial precedent is prevalent in the adversarial system, whereas in the inquisitorial system, a judge is allowed to decide a case independently and irrespective of a previous decision.
The rule of lawyers is active in the adversarial system, while the rule of the judges is passive. The reverse is the case in the inquisitorial system.
In the adversarial system, the conduct of proceedings is in the hands of the parties, who are at will to determine the type and nature of evidence they will rely upon at trial. Whereas in the inquisitorial system, the conduct of proceedings is in the hands of the court.
Judges possess discretionary power in the adversarial system. However, judges in the inquisitorial system possess a very wide discretionary power.
Time wasting and delay in trial is a major characteristic of the adversarial system, while the inquisitorial method is fronted with speedy determination of a case.
Judgement in the adversarial system is determined based on the evidence presented by the parties before the court, and there is no contribution of the judge to the case of any party, such judge ought to act as a referee. While in an inquisitorial system, judgement is based on the findings of the judge.
Trials in the adversarial system is quite expensive, and it majorly favours the rich who can afford the best lawyers. Whereas in the inquisitorial system, there is equal access to justice to everybody.
In the adversarial system, the parties in the case presents evidence, while in the inquisitorial system, the judge produces evidence.
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Edeh Samuel Chukwuemeka, ACMC, is a lawyer and a certified mediator/conciliator in Nigeria. He is also a developer with knowledge in various programming languages. Samuel is determined to leverage his skills in technology, SEO, and legal practice to revolutionize the legal profession worldwide by creating web and mobile applications that simplify legal research. Sam is also passionate about educating and providing valuable information to people.