Brackets can be used in mediation and settlement efforts, and might be used in other negotiations. What are brackets? Say the parties in a mediation are going back and forth, inch by inch, counteroffer followed by counteroffer, getting closer to a mutual dollar settlement amount, but are still far apart and are unlikely to reach settlement under that traditional approach.  

Using brackets the parties propose ranges within which they agree to negotiate further. For example, plaintiff says plaintiff will move to $___ if defendant will move to $___; and defendant says that defendant will move to $___ if plaintiff will move to $___. Thus, each party provides a range within which that party says that it will continue to negotiate. But plaintiff does not represent where within plaintiff’s range plaintiff is willing to settle, and defendant also does not represent where within defendant’s range defendant is willing to settle. Brackets can be used to at least reduce the settlement gap. Sometimes, or eventually after multiple back and forth bracket counteroffers, the bracket ranges may in part cross each other; however, again, a bracket communicated by a party is not a representation of the specific amount within the range that that party is willing to settle. Also, of course, in the context of litigation, no settlement is binding unless it is in writing, signed by the parties, or put on the record in Court.

One caveat: attorneys and parties can have differing views or beliefs about how brackets work. If brackets are going to be used, there needs to be a mutual understanding about how the brackets are going to be used and what the bracketed amounts will represent. For example, based on experience, or based on what they have been told, some people might have the belief or understanding that it is implied that a party will be willing to settle at the halfway, mid-point number or amount within the bracket range that they have communicated. Before agreeing to proceed with brackets, the parties need to discuss and agree upon how the brackets will be used. In my view or practice, such a halfway or mid-point belief or understanding is not implied and should not be implied, unless, of course, the parties have previously agreed.

Keep brackets in mind as one technique to help parties reach resolution and settlement.

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David Tate, Esq. (and inactive CPA)

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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.