The JSH Reporter JSH Reporter - Fall 2017 | Page 18
BRACKETING ARTICLE
018
BRACKETING:
WHETHER A FAN OR FOE, IT IS
IMPORTANT TO UNDERSTAND
ITS ROLE IN MEDIATION
AUTHOR: Mark Zukowski
EMAIL: [email protected]
Bracketing is a favorite tool used by mediators, and now
more frequently by the parties, to facilitate settlement during
mediation. Not familiar with bracketing? It is exactly what the
word suggests. It is a tool used to summarize the process of
negotiating the high and low of the zone in which settlement
negotiations occur. Either party may, but most often the
mediator will, propose a high and low settlement figure (ie, the
bracket) within which the parties agree to continue settlement
negotiations. Understanding how and when to use bracketing in
mediation can enhance your mediation success.
A bracket can be proposed at any time during a mediation. I
have witnessed mediators propose a bracket at the inception of
the negotiation after receiving an initial demand and offer from
the parties where the figures are so far from where the case can
likely settle that neither side is willing to make another move
or, if they do, the move is so small that it results in a reactive
response of equal incremental movement until the dialogue ends
in frustration and stalemate sets in.
Traditionally, bracketing was a tool used only by a mediator after
the mediator had meaningful conversations with the parties and
their representatives and developed a clear understanding of the
claims and defenses, explored the parties wants and needs, and
evaluated the risks of the case not settling. A seasoned mediator
would then take the information developed during caucuses
BIO: jshfirm.com/MarkDZukowski
with the parties and apply his or her knowledge and experience
to present the parties with the mediator’s proposal for a bracket
within which the parties continue negotiations in earnest.
More often, brackets are now proposed by one party or the
mediator to “test the waters” as to where a case may ultimately
settle. Here, the proposed bracket is not offered with the
expectation that the bracket will be accepted by the party to
whom the bracket has been proposed as springboard to further
negotiations but is used to send a message as to where the
proposing party might be willing to go to settle the case (typically
the halfway point between the high and low bracket figures).
Even if the party to whom the bracket is proposed rejects the
offered bracket, it often results in the opposing party proposing
a new bracket, which can be useful in evaluating where the
opposing party may be willing to settle the case (again, typically
the midway point between the high and low bracket figures).
It is not uncommon that once a bracket for further negotiations
is proposed, the parties continue their negotiations with the
exchange of further conditional brackets. Other times, where the
proposed bracket is not perceived as a reasonable range within
which to continue settlement negotiations, the use of bracketing
is rejected and the parties are left to continue negotiations in a
more traditional exchange of settlement demands and offers.