Mediation is all about finding common ground. As I discussed in my prior article, Mediation in Litigation: Five Key Tips for Success, employers can approach mediation far more effectively when they understand not only what mediation is, but also the tools that may be used during the process. One of the most common — and often misunderstood — tools is called bracketing. This week’s Friday’s Five covers what bracketing is, why it’s used, and five key points for negotiating effectively with it.
1. What Bracketing Is (and Why It Matters)
Bracketing is when one party proposes a range of settlement numbers rather than a single offer.
Example: Instead of saying:
“We’ll offer $75,000,”
A party might say:
“We’ll move to a bracket of $50,000 to $150,000.”
The range itself is important, but often the midpoint is what the other side focuses on. For example, if you propose a bracket of $100,000–$200,000, the midpoint ($150,000) might be interpreted as the settlement zone you are signaling—whether you mean to send that message or not.
Bracketing can change the tone of the negotiation. Instead of fighting over whether the next offer should be $90,000 or $95,000, a bracket reframes the discussion to “are we negotiating in this general range?” That shift can open the door to resolution.
2. Why Mediators Use Bracketing
Mediators often suggest bracketing when the parties are far apart and traditional back-and-forth offers aren’t making progress. Common reasons include:
- Signaling flexibility without commitment: Bracketing lets a party suggest a broader settlement zone without moving all the way to a specific number.
- Resetting unrealistic expectations: If one side is anchored to an extreme number, a bracket can re-center the conversation toward a more reasonable range.
- Testing the waters: Sometimes a mediator uses brackets to see if there’s overlap between what the parties might accept without forcing either side to commit yet.
By shifting from fixed offers to a flexible range, mediators can reduce tension and focus the discussion on zones of potential agreement rather than positional bargaining.
3. Strategies for Using Bracketing Effectively
If you decide to bracket, you need a plan. Here are some ways to use it to your advantage:
- Control the midpoint narrative: Even though mediators sometimes say “don’t read too much into the midpoint,” experienced negotiators know that’s often exactly what the other side will do. Offer ranges that have a midpoint you can live with.
- Example: If you want to settle around $125,000, offering a bracket of $100,000–$150,000 can steer discussions toward that zone.
- Use bracketing to reset expectations: If negotiations are stuck in small moves, proposing a range can disrupt the “inch-by-inch” stalemate and invite more meaningful movement.
- Make it conditional: To avoid giving away too much, you can make your bracket contingent on the other side offering their own bracket.
- Example: “We’ll bracket at $80,000–$120,000 if you’ll come in at $100,000–$140,000.”
- Communicate clearly with the mediator: Make sure they understand whether your bracket is a firm settlement zone or simply a testing range. Without clear communication, the mediator may present your bracket with more flexibility—or more rigidity—than you intend.
4. What to Watch Out For
While bracketing can be useful, it carries risks if not handled carefully:
- Revealing your bottom line: If your bracket’s midpoint is close to your true walk-away number, you may tip your hand too early.
- Perception of weakness: Offering a range that makes large concessions can signal desperation and invite the other side to push for even more.
- Misinterpretation: Without clear framing, your bracket could be taken as your actual settlement zone, even if it was meant as a discussion tool.
Think ahead: if the midpoint becomes the focal point, are you prepared to defend or move from it?
5. When to Decline to Bracket
You’re never required to use bracketing just because a mediator suggests it. Situations where you might decline include:
- You’re near your last, best, and final offer. Bracketing could pressure you into revealing a range you’re not comfortable with.
- The facts or liability issues are still unsettled. If there’s a major dispute over legal or factual issues, negotiating numbers through a bracket may be premature.
- The other side is fishing for your number. If they won’t reciprocate with their own bracket, you may be giving away strategic information for free.
- The midpoint doesn’t work for you. If the mediator is pushing a midpoint that’s outside your acceptable range, it’s okay to walk away from the bracket discussion.
Final Thought
Bracketing can be a powerful settlement tool when it’s used strategically. The key is preparation:
- Know your real settlement range before you start.
- Work closely with your attorney to frame brackets that advance your position.
- Understand that the midpoint will often be interpreted as your target—so choose carefully.
And remember: just because bracketing is offered doesn’t mean you have to use it. Only bracket when it serves your negotiation goals.
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