Bracketology
In virtually every mediation that bogs down, I am asked about the use of brackets. Brackets have their place but to state the obvious: the use of brackets will not change parties’ calculation of their BATNA (Best Alternative to Negotiated Agreement), will not affect their underlying interests, or their perception of the right or wrong of a settlement. These are the real drivers toward settlement and every advocate — and mediator — should address these issues directly with their client. So, what purpose(s) does bracketing serve in a negotiation? What are brackets? Bracketing is essentially conditional negotiation. One party suggests that they will offer X if the other party agrees it will demand Y. Instead of making an incremental offer or demand the parties make conditional offers and demands conditioned upon the other party’s response. In truth every demand and countering offer is a form of bracket. But brackets as
