Reducing disparities in civil procedure systems: towards a global semi-adversarial model

It is commonly perceived that the main difference between adversary and non-adversary systems of civil procedure comes to the party to whom the duty to gather facts and evidence is charged. Generally speaking, in adversarial systems, it is the lawyers who gather facts and collect evidence. In contrast, in the non-adversarial system, as in continental Europe, the judges bear that responsibility. Although this dichotomy exists, it is fundamentally flawed to conclude that the non-adversarial system, such as the Continental ones, differs from the American system because of the inquisitorial method of fact-gathering and evidence-gathering. As we will demonstrate, the real difference pertains mainly to the parties’ role in the preliminary phase of the lawsuit, the discovery methods, the judge’s incoming on the scene, and the techniques for examining non-documental evidence. Both systems present advantages and drawbacks regarding efficiency (cost-saving) and efficacy (truth-finding) in administering justice.