Frequently Asked Questions

Mediation sessions are generally rather flexible by nature. The object is not to be to tightly bound to a rigid, formal structure, which can frequently turn such negotiations adversarial.

Generally, a mediation session occurs with all parties to the dispute and the mediator siting down together in a quiet, comfortable place, and discussing the dispute. The mediator serves as the facilitator, ensuring each party has a chance to tell their story without interruption. The meditor works all the while to defuse the situation, helping the disputants de-emphasize the emotional issues surrounding the dispute, and establishing the basis for an eventual solution.

During the session, the mediator may talk privately with the parties to the dispute, if there are issues the individual wishes to discuss but which they are not comfortable sharing with the other parties to the dispute. This may occur at the request of the party wishing to discuss a matter, or at the request of the mediator if they judge it to be conducive to producing a solution.

Rules of evidence as practiced in litigation do not apply to mediation, as a mediator is not charged with establishing guilt or innocence, or even necessarily the facts of the case. The mediator does not decide who is right or wrong, nor does the mediator decide on a winner or loser, nor do they issue a judgement or punishment. The mediator is there to serve as a facilitator and referree; not to pass judgement.

Mediation is a method of resolving conflicts in a non-coercive manner. Essentially, the mediator serves as a facilitator and referree, helping all parties to a conflict to come to a mutually agreeable solution. This differs greatly from the standard litigation/arbitration model, in that the Mediator does not decide on a "winner" and a "loser," nor does the Mediator decide what the "proper" solution will be, and impose it on the parties to the conflict.

The outcome of a successful mediation is a contract between the disputants, which all involved have agreed is a solution they all can live with. The object is a win/win solution which not only solves the problem, but removes or reduces the negative emotional conditions surrounding the dispute and the parties involved.

Yes they are. The mediator will take notes during the session in order to facilitate the discussion and to refer to in writing the contract the parties will sign at the end, but these notes will be destroyed after the session is over. The disputants are welcome to take notes as well, but we ask that they be turned over to the mediator at the end of the session to be destroyed as well. Thus, the notes and other records of the proceedings are immune to subpoena.

The only document remaining after the end of the session is the contract the disputants have developed and agreed to during the mediation process. The disputants have the option of allowing a copy of the contract to remain in The Ancap Agency's records, however, unless explicitly requested to do so by at least one of the parties to the dispute, the mediator will destroy all copies remaining after the disputants have received their copies.

The Ancap Agency intentionally keeps very little in the way of permanent records, in order to maintain the confidentiality of all clients, even in the face of subpoenas and other government activity (such as seizure with or without warrant).

The short answer is no, we do not allow attorneys to participate in our mediation sessions.

There are several reasons for this.

First of all, mediation is an alternative to litigation, and as such, attorneys have no place in the proceedings.

Second, many attorneys have a tendency, to put it bluntly, to be adversarial and to consider themselves experts despite being out of their element. They generally serve only to complicate the proceedings and to make the disputants more uncomfortable and unwilling to negotiate, by insisting on acting as if the proceedings were the same as those occurring under the auspices of a coercive system of litigation. They tend to create an adversarial atmosphere, and thus destroy the proceedings out of a desire to either take the dispute to court, or to settle the matter by adversarial negotiations amongst themselves.

Third, the presence of an attorney tends to be a sign of unwillingness to negotiate in good faith. Whether by intent or not, coming to mediation with an attorney sends the message that if the disputant doesn't "win it all," that they will ignore the mediation and resort to coercive methods. The mediation process depends upon the demonstrated willingness of the disputants to negotiate a mutually agreeable solution in good faith.

Fourth, attorneys are officers of the court, first and above all. With the exception of a few pro-Liberty lawyers, their allegiance is not given to their client, or to truth or justice, but rather to the government court and the coercive and adversarial litigation system. As the confidentiality of discussions during a mediation session is guaranteed by The Ancap Agency, we cannot allow agents of the court who will not abide by an agreement maintaining said confidentiality to be present.

Again, mediation has very little in common with court proceedings.  It has much more in common with couseling sessions, than with any conventional form of dispute resolution.  Whereas rules of evidence and strict procedure are, to be fair, essential in court proceedings, they have little or no validity in mediation.  By necessity, courts and arbitrators must disregard emotional issues, ancilliary issues, etc.  They must consider only the facts directly pertinent to the case, and the law as established by the government which applies in the particular case.  Thus, most lawyers are completely unprepared for the reality of a mediation session, and would (granted, with the best of intentions) strenuously object to the proceedings and encourage their client to resort to the standard court proceedings instead.