Mediation Creates a Space/Martin Rosenfeld, JD

Posted on September 14, 2016


Attorney/Mediator Michael Aurit added his name to the many who have written articles on how to select a mediator. Attorney Aurit acknowledges the fact that his topic selection, is neither novel nor unique. However, in his article, found  on, Mr. Auritt defines the role of the mediator in terms of her/his ability to create trust. To bolster this point, Mr. Aurit quotes  a comment made years ago by John Fiske. The Fiske principle is quoted as follows: “Just create a space for them to have a conversation–that’s all you do–give ’em a place to talk.”

I find this definition to be a very satisfying one. When I took my first mediation course, I was assigned the job of being the mediator in a role-play. The two parties were played by course trainers. I was apparently too overbearing to satisfy one of the trainers. He said to me, while pointing to a corner: “Just sit there. We will tell you when we need you.” Once the atmosphere is set, let the parties take over. It is their nut to crack. Listen more and talk less, once you see the lines of communication have been opened.

In a divorce mediation, I needed to leave the room for a quick phone call. We had been going for more than 2 hours at that point and had made great progress. I asked the couple to continue the discussion in my absence. When I returned, I asked the couple what they discussed in my absence. The wife informed me: ‘We talk only when you are with us. When you are gone, we shut up.” While this was not the preferred answer I was seeking, I do believe that the Fiske principle had been at play. The mediator must “give em a place to talk.” At least in my presence, this couple had shown me that this level of trust had been created.

Mediate don’t litigate.