J. G . Mean and (Brackets)

My mediations are haunted by a fellow called J. G. Mean who just keeps cropping up. I can be as creative as I like but all too soon JG is there in the room. You encourage some venting, explore various forms of reality, re-frame a little, season the whole boiling with some cognitive dissonance and stand well back – only for somebody to say, “Just Get Me A Number!”.

Now there are various antidotes to JG*. (And in the right place, at the right time JG can be hugely welcome.) But the antidote I have always wanted to try is The Bracket.

We have known for many years that our colleagues in the US were using brackets routinely and successfully to settle cases. I have used them myself, just not in this country. This is the process whereby rather than simply trading offer and counter-offer a party makes a conditional offer: “I will go to £500,000 but only if you come down to £1 million” or more simply says, “My bracket is £500,000 to £1 million. Will they work in that bracket?”.

A word of warning here to our transatlantic readers. If you persevere with this post you will learn nothing. Indeed you may  feel rather like Roger Federer reading a schoolboy’s over-excited essay about his first tennis lesson: simplistic  and with the odd  mistake. Apologies

My own attempts to promote the use of brackets in London have met with abject failure. The parties and their advisors look at me as if I have just suggested trial by combat. “(Sigh) Just get me a number, Bill”

That is, until last week.

Now it is true that last week circumstances were not entirely typical.

First, there were US as well as London lawyers in both rooms so each side had a source of comfort and reassurance as they faced this unusual and discomfiting challenge. Some may object that the record is therefore wind-assisted.

Second, I have to say the mediator was unusually persuasive. Sensing that the door was just slightly ajar I came up with this successful formulation: “Please, please, please be my first London mediation to settle using brackets”. I’ve always thought abject supplication was an effective dispute resolution technique and so it proved in this case.

The magic of brackets, I can now tell you on the basis of extensive experience, turns out to be “the mid-point”.

Of course, in one sense a bracket is at best a conditional offer of the lower figure in the bracket. And the “condition” usually remains unfulfilled. This is because the counter-proposal tends to be another different bracket. So the response in the above example might be: “No we can’t accept your bracket. But we will come down to £1.4 million if you come up to £800,000.”

At a purely prosaic level nothing much has been achieved. But there is poetry here if you look for it. Turns out the bracket connoisseurs are keeping an eye on the mid-point because the most important message of the bracket is that the mid-point of the range is implicitly being signalled as the killing zone for the deal.  The parties tend (at least in private) to say “I have moved my midpoint” more readily than they say they have moved the bracket itself. “She must like my mid-point”, they muse to the mediator.

The midpoint is not being formally offered. It is not even being referred to explicitly. But it shimmers temptingly in the half-light of the negotiations.

Since last week’s triumph things are back to normal. I have once again failed to sell brackets in a couple of purely domestic mediations (“JG! How nice to see you!”). The gleam in my eye is no doubt even more off-putting than before.

Because I have seen the future. Brackets will be here soon, with no more than the customary time-lag, just like hamburgers, rock ‘n’ roll and indeed mediation itself before them.

And they work!

*The best of them set out in the excellent “Making Money Talk” by J Anderson Little

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