Brackets in Mediation: A Primer...

Cranfill Sumner LLP
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If the typical back and forth of negotiations is no longer resulting in positive movement in a mediation, alternative approaches are worth pursuing. One such alternative is the use of brackets.

While the concept of brackets may seem daunting, when properly applied, brackets may overcome logjams. This is true even when the brackets themselves are rejected as the exchange of brackets provides a great deal of information in a manner that maintains considerable flexibility for the parties.

In simple terms, a “bracket” is a settlement range within which a party would be willing to settle a case.  The “bracket” or range is provided to the other side instead of a new demand or offer. From the plaintiff’s perspective, offering a bracket allows them to make a significant reduction in their demand, because acceptance of the bracket would result in a significant corresponding increase in the defendant’s offer. This allows the parties to jump a considerable distance toward each other, as each side commits to the jump unlike the typical exchange of demands, wherein a large reduction in a demand may not be coupled with a corresponding increase in the offer.              

If a bracket is suggested by one side, the other side then has several options. They can accept the bracket, offer a different bracket or reject the concept and return to the trading of numbers. In the event that the offered bracket is accepted, the offering party then must make a new demand within the range of the bracket and negotiations continue, well advanced from the prior log jam.              

The exploration of brackets is frequently beneficial as parties are psychologically freer to exchanging brackets then they are in making unilateral moves when negotiations are at near impasse. The comfort of knowing that a bracket, if not accepted, has not staked a party to a specific number, allows the parties enhanced flexibility. Further, the back and forth of competing brackets allows the parties and the mediator to explore various settlement ranges in a rapid manner that frequently overcomes the rigidity of the traditional trading of small incremental moves.              

Takeaways:

1) Be open to new alternatives in negotiation strategy.

2) Open lines of communication beyond the mere passing of firm offers and demands.

3) Before offering a bracket, confirm that everyone understands how they work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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