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MEDIATION: What is negotiating with brackets?

One tool many mediators use is "negotiating with brackets".

In most mediations, the parties start their negotiations far apart from one another. Most times that gap can be bridged through normal negotiations. But in some instances, mediators will suggest using brackets to help close that gap. What does that mean?

Instead of making a counter-offer, the mediator may suggest that your next move is a proposal that the parties both agree to move to a specific range of offers. For example, if the plaintiff is at $150,000.00 and the defendant is at $25,000.00, instead of the plaintiff's next move in the negotiation being a dollar amount, the plaintiff may say that we'll go down to $100,000 if the defendant goes up to $75,000.00.

Rarely does the opposing party say "yes" to the first proposed bracket. Instead, in our example, the defendant may say "No, we won't do your bracket, but if you come down to $75,000.00 then we'll come up to $50,000..00".

Sometimes the parties agree to a bracket. Sometimes they don't. But even when we can't agree to a bracket, the exchange of proposed brackets helps the parties glean information about where the other side might be, which helps get the case resolved.

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