“If you are doing brackets, watch how they move and keep an eye on the midpoint. Are you seeing that the midpoint stays about the same? Does it go up, does it go down? What is the other party signaling?” In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience as a mediator to provide an overview for lawyers on the use of “bracketing” in mediation. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com
To read the full episode transcript please see the Podcast Website.
“If you are doing brackets, watch how they move and keep an eye on the midpoint. Are you seeing that the midpoint stays about the same? Does it go up, does it go down? What is the other party signaling?” In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience as a mediator to provide an overview for lawyers on the use of “bracketing” in mediation. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com
To read the full episode transcript please see the Podcast Website.
[intro music]
JEAN LAWLER:
Well hello, I’m Jean Lawler, I‘m your host of the ROADS TO Resolution ~Closure and ~Certainty Podcast. It's a pleasure to be here with you today. As a mediator, I am honored to be invited into other peoples’ lives for a few hours, lives that like all of our lives are shaped by the many roads that have brought us to our “today”, roads leading to the unexpected, and roads holding the promises of our “tomorrows”. And so what to talk about today: Bracketing.
Bracketing is something people talk about a lot. Bracketing–not in the terms of the college basketball games. When I googled “bracketing”, that's what came up. I laughed to myself. No, not that bracketing. Bracketing in terms of mediation, settlements, resolutions.
Turning to that. First of all, what is bracketing? Well, it's many things, and it can take many forms, and there are whole courses out there explaining bracketing, and strategy, and things like that. So obviously we can’t do that in the few minutes that we have together here today, but so let me just give you some basics on this.
Bracketing is a form of setting a high number and a low number within which the parties will agree to negotiate. I always think of this as the “dance floor”. That’s just the phrase that I use. When I was trained, that’s what they said, and I always use that. There’s certainly fancier terms for it, but this is the “dance floor”. So if parties are here and here, you have to get them to here or maybe it's this way or it's that way. Whatever it is that will get the “dance floor” in place so you know as the parties get closer and closer where they’re going to be able to settle. What range will they be able to settle within? And that’s really in a nutshell what bracketing is–is trying to identify a settlement range, and the ways that you do that can be very different. And then the ranges can move, and they do move. Nothing is set in place.
So, what it is, is: Where one party would suggest a low number of “X” and a high number of “Y”, perhaps. And if they are the plaintiff, then they may be suggesting that they would go down to their “Y” number if the defense comes to “X”. Or if it's the defense, the defense may be saying, if the plaintiff comes down to “Y”, then we’ll go to “X”. But again, there are so many ways to use it, and there are very different ways of wording it. I think the way you word it is what’s so important.
So, how do you use it? When lawyers tell me…where it sounds very demanding, “Look, will you tell them that we will go to $100 if they go to $500.” And in a way, that sounds as if it's–you know–bossy, demanding, controlling, whatever. I don’t think people like to be on the receiving end of that kind of a message, so I will usually phrase it a little differently.
One way if you’re going to have real brackets as such, would be, say, “Okay, look, the defense or the plaintiff, either side, is proposing a bracket of ‘X’ and ‘Y’.” I don't use the phrase, “If you come to this, then they’ll go to that.” It’s implicit in saying, “Here's the bracket, let’s propose this bracket for the ‘dance floor’”. And if the other side doesn’t like that bracket, that “dance floor”, then they can respond in kind, by saying “No, we think the ‘dance floor’ should be over here”.
Maybe the number’s been changed. Numbers may be the same on one side, but higher or lower on the other side. Or the bracket might be over here to the other side, where it's higher or lower. So, I personally prefer that wording, and I really highly recommend it–that it's the bracket that’s being proposed. It's not that the other side or the mediator is telling the other party what to do or where to go with their numbers.
I also like to use something that I’ve always called my “ifs”. I-F-S. "Ifs". If this, then that. If this can be done, then would you agree to do that? And people think of it as a form of bracketing, and I suppose it could be considered that, but when I get to a point where people are so far apart, but they really want to move and they can’t. They just can’t bring themselves to get into their range, where they might be able to settle the case, I will just start talking “ifs”.
…Look, you know, if they were willing to settle for something under “X”, maybe under a five figure number instead of a six figure number, or a six figure number instead of a seven figure number…Or using lines, somewhere between 50 and 75 thousand dollars, or 10 and 20 thousand dollars, or 500 and a million, depending on what the case is obviously. Is that a range where you think where you would be able to settle the case?
And people are usually quite candid there with that, and it's because, again, it's a range and it's no commitment. So, I, oftentimes, will use my “ifs” instead of formal brackets, but I’ll do brackets, too, of course, if that’s what the parties’ want. It's their settlement conference, their mediation.
So the question really comes down to: Should you use it? A couple of points about brackets. One is: A benefit is that nobody’s making a formal offer or demand when you’re talking brackets, because generally if someone says, “We’ll come to ‘X’ if you go to ‘Y’.” That’s not going to be the end of the equation. The people on the receiving end are not going to say, “We’ll go to ‘Y’.” They’re going to have a bracket of their own. So you should expect that whatever you put out there is just a way to help consolidate the discussions to get to that “dance floor” wherever it is going to be. And so that is good. I think that’s a positive thing in not having a formal offer/demand out there because it's easier then to revert to discussions, but by having these brackets out there, you have indicated what general ranges you are willing to settle in.
And the key is, I think people need to be very mindful of what the midpoint is of the bracket. Brackets are not necessarily there to indicate a settlement, and they’re not there to indicate a settlement at the midpoint, but if you are doing brackets, watch how they move and keep an eye on the midpoint. Are you seeing that the midpoint stays about the same? Does it go up, does it go down? What is the other party signaling? Because like it or not, law…oftentimes midpoints are being a critical part of any sort of bracket. Hence, even my “ifs”--talking about ranges but without actual numbers, like a bracket would have.
So again, you can stop bracketing at any point in the negotiations, and you can pick it up again at any point. You can do it or not do it. It's just another tool in the toolbox that we all have available to us to try to get a case settled or resolved. And with that, I would say we have discussed brackets for the day.
If you want to know more there’s all sorts of educational programs out there, articles, etcetera. So thank you so much for joining me today for ROADS TO Resolution ~Closure and ~Certainty. It's indeed my pleasure to be here with you. Please feel free to follow me on YouTube, or LinkedIn, and my website–you can find me at LawlerADR.com. Thanks so much. Bye bye.
[outro music]