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: mzukowski@jshfirm.com 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.