AN IMPORTANT LESSON TO LEARN WHEN CONSIDERING A BRACKET PROPOSAL IN MEDIATION IS TO FIND THE “ SWEET SPOT ” THAT WILL ALLOW BOTH SIDES ROOM TO NEGOTIATE WITHIN A REASONABLE BUT NARROWED SETTLEMENT RANGE .
BRACKETING ARTICLE
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AN IMPORTANT LESSON TO LEARN WHEN CONSIDERING A BRACKET PROPOSAL IN MEDIATION IS TO FIND THE “ SWEET SPOT ” THAT WILL ALLOW BOTH SIDES ROOM TO NEGOTIATE WITHIN A REASONABLE BUT NARROWED SETTLEMENT RANGE .
An important lesson to learn when considering a bracket proposal in mediation is to find the “ sweet spot ” that will allow both sides room to negotiate within a reasonable but narrowed settlement range . Setting the bracketed figures too far apart , as a practical matter , accomplishes nothing . Setting them too close or proposing a bracket too soon in the negotiation process can lead to apprehension and stall the negotiation process . Bracketing is best utilized after the parties have negotiated to the point where one side balks at negotiating further or both parties dig in because the settlement range is still perceived as being too far from the parties ’ comfort zone for settlement to allow for further meaningful negotiations . As the old adage goes , timing is everything in determining when to propose a bracket during a mediation .
Those who favor the use of bracketing during mediation see it as a useful tool to send a message as to where the proposing party is comfortable settling the case . Bracketing is also favored as a tool to gauge the other side ’ s likely settlement range by eliciting a response to an initial bracket proposal . Bracketing is also favored by many as a means to more quickly narrow the settlement range resulting in a faster resolution of the case . Finally , and perhaps most important , bracketing is also a useful tool to jumpstart a stalled negotiation .
Opponents of bracketing argue its use eliminates the art of negotiation and results in poorer settlements . They claim that bracketing , particularly if used too early in the mediation process , results in greater compromise and , hence , poorer settlements . The reluctance to consider bracketing by some is based upon the fear that its use results in a party showing its true hand sooner in the negotiation process and before a party is able to determine the other side ’ s likely settlement range .
Whether you fall in the category of fan or foe of bracketing , it is important to understand what bracketing is and how it is used , as its use has become commonplace in mediation . It is critical to recognize that once a bracket has been communicated to the other side , whether ultimately agreed to or not , assumptions and expectations are created . Even if the proposed bracket is quickly rejected , the numbers are never forgotten by the other side . Therefore , careful thought should be given before proposing or responding to a bracket in mediation because , whether intended or not , every bracket tends to anchor the proposing party and will also be interpreted as sending a message to the other side .
It takes experience to become proficient in the use of bracketing in mediation . However , once you master the art of bracketing you are likely to find that your mediation results improve .
ABOUT THE AUTHOR MARK ZUKOWSKI
Mark provides national and statewide mediation services in the areas of personal injury , construction , insurance , products liability , HOA , contracts and commercial matters . He has received extensive arbitration and mediation training through the American Arbitration Association ( AAA ) and the Strauss School of Dispute Resolution at Pepperdine University . Mark has served as a trial and settlement conference Judge Pro Tem for the Maricopa County Superior Court and as a Judge Pro Tem for the Arizona Court of Appeals .
602.263.1759 | mzukowski @ jshfirm . com