In mediation, every move sends a message—and few tools shape that message more strategically than brackets. Used at the right time, brackets can help reset expectations, reduce friction and create momentum toward settlement.

The use of brackets is a helpful negotiation tool in mediation. However, some parties are reluctant to use them, perhaps because they do not understand how bracketology can/should be used during the course of negotiations. In this article, I draw on 18 years of experience as a mediator to explain how brackets can be used to increase the likelihood of reaching a settlement. Using brackets effectively requires thoughtful consideration of how, why and when they are introduced during negotiations. At the same time, approaches to bracketed negotiations vary, and each mediator brings her/his own perspective on when and how this tool can be most effective

Mediators should implore the parties, in advance of mediations and during joint opening sessions, to begin negotiating from a position that is relatively close to where they want to end up. If a claimant begins near their total claim amount or a respondent starts near the amount set forth in their mediation statement— e.g., no liability, or the maximum cost of defense—and demands/offers are made in small increments, it can not only maximize the length of the mediation, it can maximize the frustration and adversarial emotions of the parties, which would be counter-productive. Unfortunately, most mediations proceed with the claimant’s first demand being at or near their total claim amount, which invariably leads the respondent to counter with a low ball offer, thereby prolonging negotiations.

Again, while every mediator is different, in my comments to the parties in opening sessions, I advise them, among other things, that in my experience, whatever “bottom line” numbers each party has anticipated coming in, might not be sufficient to settle the case. In doing so, I am sending my own message, early on, which in most cases turns out to be true, in an attempt to manage expectations as negotiations proceed throughout the day.

The negotiation strategies discussed in this article apply to 2-party mediations. While negotiations in multi-party mediations are more diverse and complex, the same bracketology strategies have proven to be equally successful in multi-party disputes.

How Brackets Work and Why to Use Them

Most experienced mediators and attorneys who have participated in many mediations know how brackets work. Simply stated, bracketing involves a claimant or respondent saying: “We will come [up/down] to $X, if they come [down/up] to $Y” (use of brackets in this sentence is ironically coincidental). Bracketing is typically proposed after a series of back-and-forth lump sum demands and offers have been exchanged, little substantive progress has been achieved and the frustration level of the parties is high. The implementation of bracketology, in and of itself, typically creates a new, more productive message. Whereas open-ended demands and offers have no outside limits, brackets introduce a defined range, which inherently may produce some sense of optimism that an ultimate settlement amount is achievable. The parties’ mindset has changed from focusing on small, incremental moves to seeing a light at the end of the mediation tunnel.

Responses to the initial bracketed demand/offer can vary. The other party may simply scoff at and reject the use of brackets, demanding a lump sum. Most of the time, however, the other party proposes its own bracket. Once both parties have embraced the use of brackets and advanced their own ranges, the mediator should be able to estimate a dollar range within which the case could settle, and then strategize how to work together with each party to get there.

When is the Best Time to Implement the Use of Brackets?

Each mediator must use their own judgment to decide the optimal time during negotiations to implement the use of brackets. Such a decision is case-dependent, claim amount-dependent, and also involves an appreciation of the personalities of the parties- especially the decision makers. Most of the time, the parties frame their brackets hoping that the case will settle somewhere near the midpoint. As brackets change, obviously the midpoints change. I initially view midpoints as demands/offers. Therefore, if the initial midpoints would be too far apart, it could be counter-productive to use brackets too early. Doing so might result in the same baby step, back-and-forth negotiations that proved unsuccessful initially, but this time with brackets. I typically wait until lump sum negotiations are truly at an impasse before proposing the use of brackets.

It must be noted that there may come a point in time when the maximum of one party’s bracket, and the minimum of the other party’s bracket, are close enough that the best strategy might be to change back to lump sum demands/offers. This too signals a positive change in messaging, i.e. that a settlement is now much more achievable. In effect, the parties have now agreed on one bracket, with claimant’s demand on one end and respondent’s offer on the other. This tends to be when each party digs in more- no longer wanting to settle at the midpoint. From that point, it is up to the mediator to continue to use their negotiation skills and experience and work with the parties to bridge the gap in order to hopefully achieve a settlement. Many times, a settlement occurs when the parties realize they are too close to walk away and ultimately agree to split the difference.

As a Final Negotiation Strategy, Sometimes Blind is Better

If the use of traditional brackets, midpoints and further lump sum negotiations still have not resulted in a settlement, it might be helpful to engage in “blind bracketology.” This strategy involves, after obtaining the parties’ consent to proceed on this basis, the mediator confidentially proposing a bracket to one party, without the other party knowing the dollar values. The mediator then does the same with the other party. In each case, the mediator emphasizes that they do not have authority from the other party for the mediator’s proposed demand/offer, but will attempt to get it. The numbers remain blind unless and until a settlement amount is agreed upon. If a settlement is not achieved and the mediation is terminated, any blind brackets used by the mediator remain blind and undisclosed.

Another type of blind bracketology involves requiring each of the parties to confidentially submit to the mediator one last and final settlement bracket. The mediator explains that each bracket must have a range of $X. Depending upon the status of negotiations at the time, and how far apart the parties are, the mediator may then ask the parties, before obtaining their respective final brackets, to agree on settlement parameters. Examples may include, without limitation: a) if your brackets overlap, you agree to split the difference of the overlap as the final settlement amount; b) if your midpoints are within $Y apart, both parties agree to proceed with further blind negotiations; but if they are not within $Y apart, the mediation is terminated. Each mediator must determine the most optimal parameters in the event she/he elects to proceed with this settlement strategy.

Brackets can Facilitate a Mediator’s Proposal

Sometimes, notwithstanding a mediator’s best efforts, including utilizing some or all of the above bracketology strategies, the parties cannot voluntarily agree on a settlement amount. When that happens, again depending on the circumstances, a settlement may still be achieved through a mediator’s proposal. A mediator’s proposal is essentially a one time, final proposed settlement amount from the mediator, which is only presented if both parties want a final number to consider. When presented with a mediator’s proposal, the parties are to simply respond with a “yes” or “no”, and no other counter-proposals will be entertained. If either party says no, the mediation is terminated. However, even if the first party asked says no, I still ask the other party for their response for potential application if the parties later want to engage in further negotiations. 

Even when a settlement is not achieved at mediation, the use of brackets as a negotiation tool can be highly effective in bringing the parties closer to the finish line. Moreover, if a settlement is not achieved during the first mediation session, it is quite common that, after the parties proceed with further litigation or arbitration, they contact me for a second mediation and we are ultimately able to settle the dispute. 

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.