Q&A With MSNY Mediator Harvey Besunder

We sat down recently with mediator Harvey Besunder to get his take on why mediation is a good option for both lawyers and clients, what his mediation philosophy is, what the parties can expect from the mediation process, and more.

Man wearing a striped tie in front of the American Flag
Harvey B. Besunder, Esq.

Can you give us a little background about your career and how you got into mediation?

I have been practicing law for over 50 years. During that time, my practice has focused on general commercial matters, estates, real estate, land valuation, and attorney professionalism.

In 2017, I was appointed as a Special Master to oversee, mediate, and resolve discovery disputes in the Suffolk County opioid litigation, which was resolved by settlement and verdict in 2022. I assisted the judge with discovery motions and arguments by counsel. I have also mediated numerous cases in my own practice.

I have often thought that mediation might be a good option for clients who are considering filing a complaint against an attorney; perhaps these matters could be resolved through mediation before a complaint against the lawyer ever gets filed, providing the attorney with an opportunity to rectify a mistake or bad situation and the client with an opportunity to be heard. At one time, I even formed an Attorney Professionalism Committee at the bar association for this purpose.

I have always been an active member of many bar associations. I served as the President of the Suffolk County Bar Association, as well as on a number of the Association’s committees, on the Executive Committee of the New York State Bar Association’s Real Property Section and as a member of the New York State Bar Association’s House of Delegates, and several other committees. I also served on the Grievance Committee for the Tenth Judicial District, and currently serve on the Committee on Character and Fitness.

What advantages do you see for lawyers and their clients in choosing mediation to resolve their disputes?

The major advantage is time. Since the courts can no longer handle the backlog of cases, the time to reach a resolution is extended and the issue may become meaningless. Mediation avoids the issues of discovery, depositions, and motions, all of which delay the ultimate goal.

In addition, being able to present your position without the limitation of the rules of evidence should make this process more attractive to litigants.

Can you tell us a little bit about your philosophy or the approach you take as a mediator to help the parties reach a resolution?

My philosophy is to permit uninhibited presentation of the positions of the parties at the beginning of the mediation. As a mediator, I want to be able to listen to the facts, evaluate the law and have free discussion with the parties and lawyers.

The mediator must instill confidence in the process, make sure the parties understand that the mediator is neutral, and that there is a common goal to reach an understanding. The mediator must understand that sometimes the emotions will dictate the course of the discussion and must try to have a calming effect, and actually express the advantages of the process.

Procedurally, the approach should be to have a joint session and then meet with the parties individually.

What do you think are the most important qualities of a good mediator/what should the parties be looking for in a mediator?

The major quality that is important as a mediator is similar to that of a judge. The mediator should have knowledge of the law, appropriate demeanor, excellent listening skills and a sense of fairness.

It is also important for a mediator to be able to control the flow of the proceeding, to facilitate the discussion and establish confidence in the process and in him/herself as a mediator.

It is also crucial that the mediator be able to explain the risks or benefits of protracted litigation, as well as discuss the exposure of each of the parties based on the facts presented and the law should they choose to pursue litigation.

A good mediator should have the ability to evaluate the legal theories, but sometimes, it is more important to have the ability to deal with the emotions the parties bring to the case.

What can the parties expect from the mediation process?

The parties should expect to be able to present their positions, and to have separate discussions with the mediator.

What are the three main things you wish the parties would do in preparation for mediation?

In my mind, the three main things the parties should do are:

1. Just as in a trial, meet with counsel and prepare the major points that they want to bring out. Most important, have a goal in mind and be ready to compromise. The lawyer should first explain to the client the purpose of the mediation, and to not lose sight of the goal which should be to settle the dispute.

2. Prepare a mediation statement that sets forth the position of the party.

3. Understand that in discussion with the mediator, it is to their advantage to be candid, to cooperate and to have a sense of what the mediator is presenting; otherwise the process will be unsuccessful.