Litigate.Arbitrate.Mediate

When you signed that real estate purchase contract last month did you initial the box that will compel you to arbitrate rather than litigate any dispute that may arise in the future about the contract or about the million dollar house you just bought?  Did you check the other box agreeing to mediate before initiating any legal action?  Did you do the right thing, the smart thing?

What’s the difference between litigation and arbitration?  How does arbitration differ from mediation?   Litigation, arbitration, mediation – what do these words mean?

Litigation is what happens when a lawsuit is filed in court.  The procedures and processes that the lawyers and judges use right through a jury trial, verdict and judgment are all part of the litigation.  A claim that is being litigated is a claim that is going through the court system.

Arbitration is very similar to litigation but arbitration is conducted outside of the court system.  The disputing parties hire an arbitrator who will be both judge and jury.  An arbitration hearing is like a trial and the arbitrator will make a decision called an award, which will have the same effect as a verdict and judgment rendered in court.  Arbitrations usually go faster than litigations because the procedures are simplified.  The parties pay the arbitrator’s fees in addition to their own attorney’s fees.

While arbitration and litigation are similar in that the arbitrator or the judge and jury make a decision, a mediator makes no decision about the matters in dispute.  Mediation does not include a trial of the case.  Mediation is a facilitated negotiation and the mediator is the facilitator.  In a successful mediation the parties, with the help of the mediator, negotiate and may voluntarily agree to settle their dispute. Mediators, like arbitrators, are hired and paid by the parties.  A dispute can be mediated before or during arbitration or litigation.

A decision to initiate litigation is a serious matter.  So is the decision to waive your right to litigate in court and to agree to privately arbitrate your case instead.   Mediation might result in a resolution of your case, peace and possibly even satisfaction.  Make a thoughtful decision about when and whether to mediate a dispute.  Unsuccessful mediations, however, can make litigation or arbitration harder and more expensive and can reduce the chances of ultimately settling your dispute on acceptable terms.

I will have a few tips for our readers in Part II of this series on how to decide whether to agree to arbitrate your dispute rather than insisting on your right to litigate in court.  Part III will feature the mediation process.  Mediation has become so popular and common that it is assumed that disputes will end up before a mediator.  Stay tuned.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

The Insanity Defense

John Hinckley Jr. shot President Ronald Reagan in the chest in 1981.  The shot was almost fatal.  Hinckley also shot presidential press secretary James Brady in the head, permanently disabling Brady.  Police officer Thomas Delahanty and Secret Service agent Timothy McCarthy were wounded as well.  When Brady died in 2014, the medical examiner pronounced the death to be a homicide – a result of the head wound inflicted by Hinckley thirty three years before.   Hinckley shot the president and James Brady in order to impress actress Jodie Foster.  He was stalking Foster and not having much success in arrange a real encounter.  He thought that assassinating the president would do the trick.  Obviously, John Hinckley was mentally ill.

Now, three and a half decades later, doctors have found that John Hinckley is sufficiently restored to mental health that he can be released back into society.  He is no longer a danger, the psychiatrists say.  He won’t try to assassinate any more presidents and he will not hurt anyone else.  Hinckley may have been found not guilty as a result of insanity but that insanity was not permanent.  It was insanity of the passing type, temporary insanity.  

Hinckley is not the first to “get away with murder” because of a mental disorder.   In San Francisco in 1978, former police office and former city supervisor Dan White coldly shot and killed Mayor George Moscone and Supervisor Harvey Milk.  White’s famous diminished mental capacity defense resulted in a conviction for voluntary manslaughter rather than murder and White was released after just five years in prison.   Five years for two cold blooded assassinations!

John Hinckley’s defense of temporary insanity has its roots in politics too.  Congressman Dan Sickles was an aspirant to the presidency when he shot and killed Philip Barton Key, the district attorney of Washington DC and the son of Francis Scott Key, the author of our national anthem.  Key had been taking liberties with Sickles’ beautiful young wife Teresa and that just drove Sickles out of his mind.   Sickles was defended at his trial by Edwin Stanton, also an aspirant for the presidency and later Abraham Lincoln’s Secretary of War.  It was the trial of the century and Dan Sickles walked out a free man.   He was insane when he shot down young Mr. Key.  He was out of his mind with jealously and rage.  It seemed that shooting Mr. Key in the head had a salutary effect on Sickles’ mental health because the jury found that the insanity that excused Sickles from shooting and killing an unarmed man immediately disappeared once the killing was done.  Sickles felt a lot better when his wife’s lover was dead at his feet.  Dan Sickles went on to be a major general in the Union Army and lost a leg at Gettysburg.   

John Hinckley’s insanity, like that of Dan Sickles, has been determined to be impermanent.  Hinckley has been restored to his freedom because psychiatrists found that the insanity that drove him to shoot the president and James Brady and two others was not permanent.  It was temporary and Hinckley is better now.  You may be forgiven for wondering if some others besides Hinckley might be a little bit out of their minds.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.