Adversarial or Inquisitorial?
The adversarial legal system involves opposing parties or their representatives who engage in debate and argumentation to present their cases. The Judge's primary responsibility is to maintain fairness and equality, remain impartial until the conclusion of the case, and ensure that the dispute is resolved in a relatively efficient manner. The overarching objective is to enable the system to handle cases justly and at a reasonable cost. This stands in contrast to the inquisitorial legal system, wherein the Judge assumes a more proactive role in interrogating witnesses and ascertaining the veracity of the matter at hand.
The adversarial legal system provides parties in a dispute with the ability to manage their own case and effectively present their respective positions. However, situations where there is a lack of 'equality of arms' can result in observable and evident unfairness. This occurs when one party has greater resources, which allows them to hire a more eloquent lawyer, gather more evidence and present a stronger case to the judge, giving them an advantage over their opposition. Moreover, since the parties possess almost complete control over the proceedings of the case from inception to final verdict, they have the ability to determine which evidence they present to the Court. By contrast, within an inquisitorial legal system, the Judge plays an active role throughout the proceedings and guides the gathering and organisation of evidence, which allows for a more thorough and precise verdict to be rendered.
Generically, the Beis Din will employ the inquisitorial approach to attain a just, efficient, and precise resolution. In comparison to resorting to the Court, this approach is typically a lot less costly. However, the parties can make a joint request for a hearing comparable to a court proceeding, where they may be represented by legal counsel and advocates (To'anim) to present their arguments.
It should be noted that the primary impetus for a Jewish individual to seek recourse at Beis Din stems from his Halachic obligation to do so. According to Sanhedrin 7a, if one were to lose money in a Din Torah he should consider it a blessing. On the other hand, monies gained through secular court may be deemed "stolen" under certain Halachic circumstances. For instance, if the amount awarded exceeds what the winning party is entitled to according to Halacha, such as interest and legal costs, it may be deemed unfit for use. Rabbi Akiva Eiger to Choshen Mishpat chapter 26 provides further insight into this matter. Additionally, there exists an overarching prohibition against voluntarily pursuing or defending a claim in a secular court when a Beis Din (Jewish court) is available as an alternative.
If the parties have entered into a binding arbitration agreement, the prevailing party can legally seek enforcement of the Award by bringing it before a secular court.
The prevailing party is bound by a Halachic obligation to initially provide the debtor with a chance to address the debt through means other than secular court. In the event that the debtor expresses an inability to fully adhere to the Award, the Beis Din can utilise a management process known as Mesadrin, which is expounded upon in Shulchan Aruch Choshen Mishpat 97:23. According to Shulchan Aruch 99:1, the debtor is obligated to surrender all of his current assets to the creditor and to promise to surrender any future asset that may come into his possession. [Cf. Shulchan Aruch Admur, laws of Halvoh paragraph 5.] According to Rambam, Malveh 2:2 and 22:10, as well as Shulchan Aruch Choshen Mishpat 99:1, it is necessary for the individual to confirm his statement by taking an oath while holding a religious object, such as a Sefer Torah. Additionally, as per Rambam Malveh 1:4 and Sefer Even Ho'Ozel Nizkei Momon 8:10:3, and in accordance with Piskei Din - Yerusholayim's Dinei Momonos 1 page 94, confirmation can be made after Kabolas Cherem.
In the event that the Beis Din cannot effectively manage the matter at hand, whether due to legal limitations or the debtor's noncompliance with the given instructions, it must provide the creditor with a Heter Arko'os, which is a Halachic authorisation to pursue secular legal action for the purpose of enforcing the Award. This is in accordance with the guidelines set forth in Shulchan Aruch Admur, Nizkei Momon, paragraph 6 and Seder Hadin pages 473-474.
Instructions on how to initiate a Din Torah, can be found here.
P.S. The services of Beis Din are not limited to individuals of the Jewish community.