Maybe Not, But Mediator Proposes Other Strategies
Mediator Robert Mann has an interesting article in the April 27, 2012 edition of the Los Angeles Daily Journal, under the heading, “Is bracketing dead? New strategies for mediation.” (Verdicts and Settlements section, p. 2).
“Bracketing” is the “dance of negotiation.” Each side comes back repeatedly with incremental changes in their bargaining position, insisting that “this time they really mean it.” Eventually the parties wear each other down (or not), and a grumbling settlement is achieved (or not). As the parties narrow the distance between the brackets, they come within a range of “magnetic attraction”, and (hopefully) come together to achieve a settlement.
Mr. Mann suggests that this process, so familiar to litigators and parties in a mediation, is wasteful and unpleasant, and that there are better alternatives. One alternative is for the mediator to confidentially elicit the goal each side desires, and if the parties are close, ask each side, separately, “If I could get you ‘x’ amount of money, would that be enough to settle this case?” This can lead to a “pre-sold mediator’s proposal.” Another approach is to spend time independently with each side, evaluating what it will take to settle the case for one side, then discuss with the other side in depth whether such a settlement makes sense. Mr. Mann believes such approaches are more efficient and less stressful and adversarial than the traditional dance of negotiation.
Such approaches depend a great deal upon the trust that the parties place in the mediator, and upon the confidence that the parties have that confidential information will truly remain confidential.
We suspect, however, that bracketing is far from dead.
Comments