CONSTRUCTING A BRACKET AT MEDIATION
Although brackets are an effective device for mediation negotiations (see Mediation Message no. 80 for a complete discussion of the process), some attorneys hesitate to use them because they’re not experienced composing a bracket. To allay those misgivings, consider the following fool-proof method for easily constructing brackets.
Start by picking a mid-point for the bracket. The mid-point, which every opposing lawyer looks at, is the average of the two opposite bracket numbers and either unintentionally or intentionally sends a message regarding possible settlement terms. (Two typical messages are the amount a party wants to settle for or hopes to settle for.) Next, assume that the plaintiff wants $180,000 as her mid-point and the defendant wants $75,000 as its mid-point.
After choosing the $180,000 mid-point, the plaintiff should then decide what amount she wants the defense to offer. Assume that sum is $125,000, which is north of a five-figure settlement. Since the mid-point is $180,000 and the bottom number is $125,000, the top number has to be $235,000 because 2 x $180,000 = $360,000 and $125,000 subtracted from $360,000 is $235,000. Similarly, the defendant should pick the top number to be offered by the plaintiff for its $75,000 mid-point bracket, keeping that amount under $100,000, so that there’s no implied signal that it will agree to a six-figure settlement. Assume that the top number is $95,000. The bottom number, the amount the defense will move to if it wants the plaintiff to demand $95,000, has to be $55,000 because 2 x $75,000 = $150,000 and $95,000 subtracted from that amount is $55,000. Thus, the plaintiff proposes that she will demand $235,000 if the defendant offers $125,000 and the defendant proposes that it will offer $55,000 if the plaintiff demands $95,000. Simple, isn’t it?
Therefore, once you have selected the appropriate mid-point and, depending on whether you’re the plaintiff or defendant, you can then adjust the top and bottom numbers to accommodate your negotiating goals. Such conditional requests should kick start the temporarily bogged down negotiation.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, April 2018