When we think of our worst negotiation mistakes, they tend to be recent blunders. But what about negotiation mistakes whose repercussions accumulate over years, even decades? A failed negotiation case study from 1976 shows how carelessly negotiated deals can lead to long-term headaches and losses.

A Short Season

In 1974, brothers Ozzie and Daniel Silna, Latvian immigrant owners of a New Jersey textile company, purchased the Carolina Cougars, a team in the American Basketball Association (ABA), for $1 million. The ABA had sprung up in 1967 as a scrappy challenger to the National Basketball Association (NBA).

Daniel Silna had been a basketball fanatic since his youth, but he wasn’t a strong player. “I kept saying that if I can’t play, the best thing to do is own a team,” he told Monte Burke of Forbes.

The Silnas moved the team to St. Louis—renaming it the Spirits of St. Louis—but in 1976, the NBA began negotiations to buy out the ABA. The NBA acquired four ABA franchises but was uninterested in the remaining three, including the Spirits.

The Silnas rejected a $3 million offer from the ABA as compensation for folding their team. The brothers had sunk close to that amount into the Spirits and hoped to do better.

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A Full-Court Press

Demonstrating sound negotiation skills, the seven ABA team owners banded together to plan their strategy. Ozzie Silna suggested that any team not taken by the NBA should be granted a one-seventh share of the TV revenues of the four teams being admitted, namely the Indiana Pacers, the Denver Nuggets, the San Antonio Spurs, and the New York (now Brooklyn) Nets. All the owners agreed, Daniel Silna told Burke. For various reasons, however, only the Silnas made this demand.

The Silna brothers received the TV rights they requested, expressed in the contract as “visual media” rights—crucially, not for a set period of time but “for as long as the NBA or its successors [continue] in its existence,” as the contract was worded.

At the time, the NBA had little to lose from this promise. Its regular-season games were rarely seen on TV; playoff games were broadcast on tape delay after the nightly news.

Getting in the Zone

After three years, the four former ABA teams began earning revenues from TV broadcasts and sharing their profits with the Silnas. The brothers received about $200,000 in 1979.

Then, in the 1980s and 1990s, everything changed—and initial negotiation mistakes became apparent. First came Magic Johnson and Larry Bird. Then Michael Jordan. Interest in pro basketball exploded, and revenue from the NBA’s TV rights skyrocketed. In 1997, the NBA negotiated a $2.6 billion deal with NBC and Turner Broadcasting. In 2002, the league signed a $4.6 billion contract with ABC/ESPN and TNT.

By 2014, the Silnas had raked in an estimated $300 million in royalty payments. As if their TV deal weren’t enough of a cash cow, the brothers successfully argued in court in 2012 that the “visual media” stipulated in their contract should include royalties from international broadcasts, internet rights, and the NBA cable network. No wonder the president of the New York Knicks called the Silnas’ agreement “the greatest deal known to man.”

Unmotivated Players

Over the years, the NBA tried repeatedly to buy the Silnas out of their contract. Finally, in January 2014, just before negotiating new, even more lucrative TV deals, the league managed to bring the brothers to the negotiating table.

In exchange for agreeing to end the perpetual annual payments and dropping their claims to international, internet, and NBA cable rights, the Silnas agreed to accept a $500 million up-front payment. According to the New York Times, Daniel Silna, then age 69, had grown tired of fighting the league. The brothers reportedly had squirreled away their NBA riches into a family trust. In 2016, Ozzie Silna died at age 83.

Common Negotiation Mistakes

The NBA’s 1976 deal with the Silnas stands out among failed negotiation examples for the sheer amount of money sacrificed, but we can all learn from its negotiation mistakes. Here’s where the league went wrong:

• Using imprecise language. The NBA might not have been able to foresee its future success or the invention of the internet, but its lawyers should have known to replace the vague phrase “visual media” with the specific word “television.” In contracts, precision is important.

• Agreeing to a long time horizon. There is rarely a good reason to sign a contract that lasts in perpetuity. A finite contract gives you opportunities to renegotiate better terms or move on if the deal no longer serves you well.

• Making the same mistake twice. In 1982, the NBA offered to buy the Silnas out of their contract for $5 million paid over five years. The Silnas countered with $8 million over eight years. The NBA refused, though it should have been clear the brothers stood to earn much more over time. By 2014, the league had learned its lesson.

What types of negotiation mistakes have you seen emerge long after a deal was signed?

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Q: I run a small consulting firm that has a services contract with a major multinational corporation. The team we work with has a bad habit of continually adding items to the scope of the project. A few weeks ago, we presented what we thought was a final project that included several additional items, but the team nevertheless came back with “next steps.” What should we do?

A: The first line of defense against “scope creep” is to be crystal clear from the start about what is included in the contract and what is not. This may require more documentation up front, but it avoids a lot of headaches and feelings of resentment down the road.

Services contracts can be input-based—stipulating the inputs that you as the provider will make, such as billable hours or manpower allocated to the account—or output-based—focusing on what you will produce, such as a market-segment analysis in the advertising world. In general, input-based contracts are better inoculated against scope creep than output-based contracts. For example, most law firms historically have focused on billable hours, at least in part to insulate against scope creep, but clients are increasingly asking for—and getting—project-based fees to gain more clarity around their expected costs.

As your question illustrates, in an output-based account, the client has a strong incentive to pile on more work, since such add-ons are effectively free. In addition to clearly specifying what the end product will include, a good defense against such incentives would be to have a “safety valve” hourly rate attached to any additional work.

Recently, for example, a European government retained a U.S. firm to conduct an investigation of a business transaction. After the U.S. firm issued its report, the governmental representative requested an executive summary, saying: “I did not find the 2–3 pages of executive summary in your final report listing the findings and the remaining issues that require more detailed analysis. Could you please forward it to us ASAP.”

Because of the diverse topics covered in the report, the U.S. firm did not believe that an executive summary was warranted or that it would be useful. So the firm’s representative wrote back politely but firmly: “If you could tell me your area(s) of interest, we could provide an executive summary. … We could do this on the hourly basis that we discussed earlier, or we could do it on a project basis.” The safety valve had its intended effect of pricing the additional work; the European government dropped its request.

When a contract is not perfectly specified and the budget does not accommodate the client’s new requests, a candid conversation may be required. Be up front in expressing your opinion that the additional work would go over budget; if the client agrees, then basic principles of fairness would dictate that you should be paid for this work.

If the client doesn’t agree with your interpretation of the contract, you might consider doing the work without further compensation, especially if it is a first request of this kind, to preserve your relationship with your client. But if you go this route, make the concession transparent: for example, adding a line item to the bill for the additional hours spent, flagged as “NC”—no charge. This makes the concession transparent, maximizes goodwill, and reduces the likelihood that a first concession of this kind will lead to similar requests. Then, next time, negotiate a safety valve for any additional hours you might work.

Guhan Subramanian
Joseph Flom Professor of Law & Business,
Harvard Business School
Douglas Weaver Professor of Business Law, Harvard Law School
Academic Editor, Negotiation

When we think of our worst negotiation disasters, they tend to be the blunders that are freshest in our minds. But what about mistakes whose repercussions accumulate over years, even decades? Those are typically the most significant negotiation messes of all.

An agreement reached in 1976 in the realm of professional basketball illustrates how carelessly negotiated deals can lead to unforeseen losses and long-term headaches.

A short season for the ABA
In 1974, brothers Ozzie and Daniel Silna, Latvian immigrants who were the owners of a thriving New Jersey textile company, purchased the Carolina Cougars, a team in the American Basketball Association (ABA), for $1 million. The ABA had sprung up in 1967 as a scrappy challenger to the National Basketball Association (NBA).

Daniel Silna had been a basketball fanatic since his youth, but he was too small to be a strong player. “I kept saying that if I can’t play, the best thing to do is own a team,” he told Monte Burke of Forbes.

The Silnas moved their team to St. Louis. The renamed Spirits of St. Louis had a decent first season, but in 1976, the NBA began negotiations to buy out the ABA. The NBA acquired four ABA franchises but was uninterested in the remaining three, including the Spirits.

The Silnas rejected a $3 million offer from the ABA as compensation for folding their team. The brothers had sunk close to that amount on the Spirits and hoped to do better.

A full-court press
The seven ABA team owners met to plan their strategy. Ozzie Silna suggested that any team not taken by the NBA should be granted a one-seventh share of the TV revenues of the four teams that were being admitted, namely the Indiana Pacers, the Denver Nuggets, the San Antonio Spurs, and the New York Nets. All the owners agreed, Daniel Silna told Burke. For various reasons, however, only the Silnas made this demand.

Eager to wrap up the merger, the ABA agreed to the Silnas’ terms. The brothers were paid $2.2 million for Spirits players drafted by NBA teams. They were also granted the TV rights they requested, expressed in the contract as “visual media” rights—
crucially, not for a set period of time, but “for as long as the NBA or its successors continues in its existence,” as the contract was worded.

At the time, the NBA had little to lose from this promise. Its regular-season games were rarely seen on TV; playoff games were broadcast on tape delay after the nightly news.

Getting in the zone
After three years, the four former ABA teams began earning revenues from TV broadcasts and sharing their profits with the Silnas. The brothers received about $200,000 in 1979.

Then, in the 1980s and 1990s, everything changed. First came Magic Johnson and Larry Bird. Then Michael Jordan. Interest in pro basketball exploded, and revenue from the NBA’s TV rights skyrocketed. In 1997, the NBA negotiated a $2.6 billion deal with NBC and Turner Broadcasting. In 2002, the league signed a $4.6 billion contract with ABC/ESPN and TNT.

By 2007, the Silnas had raked in an estimated $180 million in royalty payments. They have been paid about $57 million since 2010 and are expected to make another $95 million from 2014 to 2019.

As if their TV deal weren’t enough of a cash cow, the brothers took the NBA to court in 2012, arguing that the “visual media” stipulated in their contract should include international broadcasts, Internet rights, and the NBA cable network. A federal judge agreed, ruling that the NBA would have to pay incremental revenues from recent years and increase future royalties. No wonder the president of the New York Knicks called the Silnas’ agreement “the greatest deal known to man.”

Unmotivated players
The NBA has tried repeatedly to buy the Silnas out of their contract, with no success. This past November, talks started again. Given the Silnas’ lack of motivation to settle, agreement seems unlikely. As Daniel Silna has said, “I believe our contractual rights are solid.”

The prevalence of smartphones is raising new challenges for negotiators, as these anecdotes suggest. On the one hand, the ability to respond quickly to an e-mail or text showcases your availability and allows you to meet tight deadlines. On the other hand, being in touch day and night sets us up for missteps brought on by distraction, heightened emotions, and fatigue.

Much of the negotiation advice we encounter focuses on interactions “at the table.” Yet as our business lives migrate online, physical tables are often absent from talks, writes Creighton University professor Noam Ebner in a chapter on e-mail negotiations in Negotiation Excellence: Success ful Deal Making (World Scientific Publishing, 2nd ed., 2014).

The data tell the story. There may be close to one billion smartphone users online, and about 72% of them use their device for e-mail, according to a Harris Interactive survey. The device most commonly used to view e-mails is now the iPhone, accounting for 23% of e-mails opened worldwide. Meanwhile, the percentage of e-mails opened in Microsoft Outlook, software used primarily on desktop and laptop computers, declined globally from 43% to 18% between 2010 and 2013.

When words fail us
Absent body language, tone of voice, and social cues, negotiators must focus on the content of e-mails as they seek to understand their partners and identify whether agreement is possible. Thus, the words we choose are paramount when we negotiate via e-mail.

When negotiators take the time to express themselves clearly and succinctly, they may be able to communicate more precisely and eloquently online than they could in person. But most people don’t devote enough time to ensuring that their messages are precise, error-free, and well organized. Indeed, negotiators who do business via e-mail tend to reach less creative and less satisfying agreements than do those who meet in person.

Modes of communication differ in their synchronicity, or the extent to which people work together on the same activity at the same time, according to INSEAD professor Roderick Swaab and Columbia Business School professor Adam Galinsky. Phone calls, videoconferences, and online chats allow negotiators to respond immediately to each other’s proposals and questions.

By contrast, e-mail has been considered an “asynchronous media” because parties are free to delay their responses over the course of days or even weeks. The asynchronous nature of e-mail contributes to the high rate of impasse in e-mail negotiation.

The risks of negotiating via e-mail increase when we are typing responses or questions on the fly. As Ebner puts it, many of us now read and write e-mails “during classes, rock concerts, and movies.” This type of multitasking makes us distracted and unfocused, abundant research has found. As a result, our e-mails may be less coherent and accurate than ever.

Meanwhile, smartphones may be changing e-mail from an asynchronous format to a “semi- synchronous” one, writes Ebner. With so many people “carrying their in-boxes in their pocket,” he says, our e-mail and text-message exchanges increasingly are leaning toward real-time negotiations. Given the high potential for misunderstandings in electronic exchanges, conflict may escalate swiftly when negotiators are swapping messages in quick succession. At the same time, one can use the asynchronous nature of e-mail strategically, delaying a response to a provocative request by days, for example, or responding quickly to defuse an unreasonable anchor.

E-mail and face time: A balancing act
How can we capitalize on the convenience of occasionally negotiating on the go while minimizing misunderstandings and mistakes? Here are three suggestions:

1. Go into the wind.
To move upwind, sailors tack their boats back and forth, advancing in each direction rather than in a straight line. In the same manner, in a chapter in the Handbook of Research on Negotiation (Edward Elgar Publishing, 2013), Vanderbilt University professor Ray Friedman and Lehigh University professor Liuba Y. Belkin advise negotiators to go “into the wind”—to switch between close and distant forms of communication, capitalizing on the benefits of both and skirting their weaknesses.

Specifically, launch discussions in person when possible. During one or more face-to-face meetings, you can work toward establishing the rapport and trust that might be sorely lacking if you jumped straight into online discussions.

After an initial meeting, negotiators commonly need to identify the broad questions and issues at stake. Because research has shown that online discussions are conducive to abstract thinking, this may be a good point at which to move online.

If possible, counterparts could then meet in person again to share information about their interests and options, as proximity tends to encourage negotiators to open up and absorb what they hear. Next, negotiators could move back online, if needed, to identify tradeoffs and develop proposals, Friedman and Belkin suggest, and then signal their commitment to whatever agreement arises with another face-to-face meeting.

If meeting in person isn’t possible, then small talk and friendly questions (“How was your vacation?”) throughout the process can go a long way toward building a trusting, cooperative relationship. Phone calls, a happy medium between e-mailing and meeting face-to-face, can also help bridge the distance.

2. Increase e-mail’s richness.
E-mail and texts may be “impoverished” environments devoid of facial expressions (not including emoticons) and other helpful social cues, but there are ways to increase their richness, according to Ebner.

To reduce the errors and gaffes that come from dashing off messages on your smartphone, you could make a habit of turning your phone off at times when you are likely to be distracted. If you must review your e-mail, some programs, such as Gmail, allow you to flag important messages (with a star or other icon) so that they will stand out when you are back at your desk.

It’s particularly important to wait to reply when you feel angry or impatient with a counterpart’s message. A delay gives you time to cool off and craft a diplomatic response. If you think your counterpart is expecting an immediate reply, let her know when you plan to respond. When you do, reread your message before hitting send. Consider attaching graphs, photos, and other relevant information to improve understanding, suggests Ebner.

When you do need to answer a message quickly, add a caveat or e-mail signature informing the reader that you are using a smartphone, then review your message later. In addition, keep in mind that an e-mail lasts forever: Do not type anything that would hurt you or someone else if it were inadvertently or deliberately forwarded to others.

3. Capitalize on benefits.
Certain people and groups may be particularly ripe for e-mail negotiation, according to Friedman and Belkin.

In one series of research studies, groups of 6 to 12 people generated more ideas and felt more satisfied with their progress when negotiating electronically rather than verbally. Electronic media can lessen the odds that one or more individuals will dominate the discussion and gives shy members of a group a chance to shine.

Second, those who have difficulty expressing anger and being assertive in negotiation may find that they are less inhibited when negotiating via e-mail. The sense of anonymity that comes with e-mail can help some negotiators, particularly women, stand up for themselves and achieve better outcomes.

Finally, research suggests that young adults—computer savvy since childhood—behave more cooperatively when doing business online. Younger negotiators may be particularly capable of adapting to the quirks of smartphone exchanges.

The prevalence of smartphones is raising new challenges for negotiators, as these anecdotes suggest. On the one hand, the ability to respond quickly to an e-mail or text showcases your availability and allows you to meet tight deadlines. On the other hand, being in touch day and night sets us up for missteps brought on by distraction, heightened emotions, and fatigue.

Much of the negotiation advice we encounter focuses on interactions “at the table.” Yet as our business lives migrate online, physical tables are often absent from talks, writes Creighton University professor Noam Ebner in a chapter on e-mail negotiations in Negotiation Excellence: Success ful Deal Making (World Scientific Publishing, 2nd ed., 2014).

The data tell the story. There may be close to one billion smartphone users online, and about 72% of them use their device for e-mail, according to a Harris Interactive survey. The device most commonly used to view e-mails is now the iPhone, accounting for 23% of e-mails opened worldwide. Meanwhile, the percentage of e-mails opened in Microsoft Outlook, software used primarily on desktop and laptop computers, declined globally from 43% to 18% between 2010 and 2013.

When words fail us
Absent body language, tone of voice, and social cues, negotiators must focus on the content of e-mails as they seek to understand their partners and identify whether agreement is possible. Thus, the words we choose are paramount when we negotiate via e-mail.

When negotiators take the time to express themselves clearly and succinctly, they may be able to communicate more precisely and eloquently online than they could in person. But most people don’t devote enough time to ensuring that their messages are precise, error-free, and well organized. Indeed, negotiators who do business via e-mail tend to reach less creative and less satisfying agreements than do those who meet in person.

Modes of communication differ in their synchronicity, or the extent to which people work together on the same activity at the same time, according to INSEAD professor Roderick Swaab and Columbia Business School professor Adam Galinsky. Phone calls, videoconferences, and online chats allow negotiators to respond immediately to each other’s proposals and questions.

By contrast, e-mail has been considered an “asynchronous media” because parties are free to delay their responses over the course of days or even weeks. The asynchronous nature of e-mail contributes to the high rate of impasse in e-mail negotiation.

The risks of negotiating via e-mail increase when we are typing responses or questions on the fly. As Ebner puts it, many of us now read and write e-mails “during classes, rock concerts, and movies.” This type of multitasking makes us distracted and unfocused, abundant research has found. As a result, our e-mails may be less coherent and accurate than ever.

Meanwhile, smartphones may be changing e-mail from an asynchronous format to a “semi- synchronous” one, writes Ebner. With so many people “carrying their in-boxes in their pocket,” he says, our e-mail and text-message exchanges increasingly are leaning toward real-time negotiations. Given the high potential for misunderstandings in electronic exchanges, conflict may escalate swiftly when negotiators are swapping messages in quick succession. At the same time, one can use the asynchronous nature of e-mail strategically, delaying a response to a provocative request by days, for example, or responding quickly to defuse an unreasonable anchor.

E-mail and face time: A balancing act
How can we capitalize on the convenience of occasionally negotiating on the go while minimizing misunderstandings and mistakes? Here are three suggestions:

1. Go into the wind.
To move upwind, sailors tack their boats back and forth, advancing in each direction rather than in a straight line. In the same manner, in a chapter in the Handbook of Research on Negotiation (Edward Elgar Publishing, 2013), Vanderbilt University professor Ray Friedman and Lehigh University professor Liuba Y. Belkin advise negotiators to go “into the wind”—to switch between close and distant forms of communication, capitalizing on the benefits of both and skirting their weaknesses.

Specifically, launch discussions in person when possible. During one or more face-to-face meetings, you can work toward establishing the rapport and trust that might be sorely lacking if you jumped straight into online discussions.

After an initial meeting, negotiators commonly need to identify the broad questions and issues at stake. Because research has shown that online discussions are conducive to abstract thinking, this may be a good point at which to move online.

If possible, counterparts could then meet in person again to share information about their interests and options, as proximity tends to encourage negotiators to open up and absorb what they hear. Next, negotiators could move back online, if needed, to identify tradeoffs and develop proposals, Friedman and Belkin suggest, and then signal their commitment to whatever agreement arises with another face-to-face meeting.

If meeting in person isn’t possible, then small talk and friendly questions (“How was your vacation?”) throughout the process can go a long way toward building a trusting, cooperative relationship. Phone calls, a happy medium between e-mailing and meeting face-to-face, can also help bridge the distance.

2. Increase e-mail’s richness.
E-mail and texts may be “impoverished” environments devoid of facial expressions (not including emoticons) and other helpful social cues, but there are ways to increase their richness, according to Ebner.

To reduce the errors and gaffes that come from dashing off messages on your smartphone, you could make a habit of turning your phone off at times when you are likely to be distracted. If you must review your e-mail, some programs, such as Gmail, allow you to flag important messages (with a star or other icon) so that they will stand out when you are back at your desk.

It’s particularly important to wait to reply when you feel angry or impatient with a counterpart’s message. A delay gives you time to cool off and craft a diplomatic response. If you think your counterpart is expecting an immediate reply, let her know when you plan to respond. When you do, reread your message before hitting send. Consider attaching graphs, photos, and other relevant information to improve understanding, suggests Ebner.

When you do need to answer a message quickly, add a caveat or e-mail signature informing the reader that you are using a smartphone, then review your message later. In addition, keep in mind that an e-mail lasts forever: Do not type anything that would hurt you or someone else if it were inadvertently or deliberately forwarded to others.

3. Capitalize on benefits.
Certain people and groups may be particularly ripe for e-mail negotiation, according to Friedman and Belkin.

In one series of research studies, groups of 6 to 12 people generated more ideas and felt more satisfied with their progress when negotiating electronically rather than verbally. Electronic media can lessen the odds that one or more individuals will dominate the discussion and gives shy members of a group a chance to shine.

Second, those who have difficulty expressing anger and being assertive in negotiation may find that they are less inhibited when negotiating via e-mail. The sense of anonymity that comes with e-mail can help some negotiators, particularly women, stand up for themselves and achieve better outcomes.

Finally, research suggests that young adults—computer savvy since childhood—behave more cooperatively when doing business online. Younger negotiators may be particularly capable of adapting to the quirks of smartphone exchanges.

The deal started with an offhand remark at a news conference. In September, as President Barack Obama threatened U.S. military action against Syria, a reporter asked U.S. secretary of state John Kerry if there were any way an attack could be avoided. Syrian president Bashar al-Assad “could turn over every single bit of his chemical weapons to the international community in the next week,” Kerry said, before dismissing such a development as unlikely, as reported by Reuters.

Unlikely or not, the idea spread like wildfire. Russian foreign minister Sergei Lavrov was the first to snap it up, issuing within days a proposal to draw down Syria’s stockpile of chemical weapons. The White House, Congress, Assad’s government, and the United Nations all quickly warmed to the prospect of resolving the Syria crisis diplomatically. Together, Kerry and Lavrov negotiated the terms of a deal in which the United States would drop the threat of military strikes if Syria dismantled its chemical weapons by mid-2014.

With an off-the-cuff remark, Kerry not only inspired a creative solution to a difficult problem but helped his boss back down from a threat that had proven highly unpopular. The moment epitomizes Kerry’s style as secretary of state, write Mark Landler and Michael R. Gordon in the New York Times. In contrast to the scripted, arm’s-length approach of his predecessor, Hillary Clinton, Kerry operates in hyperdrive, acting as lead negotiator as he jets from one hot spot to the next. Traveling the Middle East with Kerry “is a seat-of-the-pants experience,” writes Landler. “Itineraries are notional. Improvisation is the rule.”

This freewheeling style carries risks: Kerry has made gaffes and, in his rush to get to the next impromptu meeting, left key partners behind. But in his new book, The Art of Negotiation: How to Improvise Agreement in a Chaotic World (Simon & Schuster, 2013), Harvard Business School professor Michael Wheeler suggests that there is much the average business professional can learn from improvisatory negotiators like Kerry. Here we offer a few key insights from Wheeler’s book that can help you become a more adaptable, creative negotiator.

Are you over prepared?
Preparation is an essential stage in negotiation, as it is in many realms of life. But through their emphasis on researching interests, options, and alternatives, canonical negotiation texts such as Roger Fisher, William Ury, and Bruce Patton’s Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin Harcourt, 1992) can lead us to the false assumption that these critical factors are static, writes Wheeler. In fact, most elements of negotiation are constantly evolving throughout the process.

Wheeler asks you to imagine meeting with a new customer for the first time. She welcomes you to her office and makes one of the following three remarks:
■ “We’re looking forward to partnering with you. Let’s figure out a deal that works well for both of us.”
■ “Good that you could come. My colleagues have put you on a short list of possible providers for this contract.”
■ “It’s time for you to fish or cut bait. We like your proposal, but you’ve got to come way down in price to beat your competition.”

Each statement would likely trigger and warrant a different reaction from you, notes Wheeler. As this example suggests, it would be impossible to script responses to the wide range of attitudes you might encounter in the opening moments of a negotiation, let alone the unexpected remarks and questions you will receive further down the stretch.

Nor would you want to have a script at your side. Overpreparation can cause us to disregard the moments of good fortune and synergy that crop up during the process. The trick, writes Wheeler, is to borrow practices from fields where improvisation is encouraged and actively taught, including jazz, comedy, and sports.

The best improvisers from these realms do three things very well, according to Wheeler: (1) They pay close attention to the world around them, (2) they identify when and how to influence and adapt to others, and (3) they are proactive, taking considered risks to move the action forward.

Soloing and comping
Just as negotiators must assess when to take the lead and when to listen, jazz musicians switch off between soloing and “comping”—accompanying or complementing what the other ensemble members are playing, according to Wheeler. Though remembered for their solos, the jazz greats know when to listen deeply, making split-second decisions about what notes to play in response to what they hear. “None of this responsiveness can happen unless players are receptive and taking in one another’s gestures,” writes Frank J. Barrett in Yes to the Mess: Surprising Leadership Lessons from Jazz (Harvard Business Review Press, 2012).

Comping is equally important in negotiation. Through careful open-ended questioning and encouraging gestures, we can draw out useful information and keep talks moving in a productive direction. At the same time, we need to intuit when it’s time to sit back and absorb without judgment what the other party has to say.

If your counterpart makes three demands, two of which are out of the question, resist the urge to immediately condemn them, writes Wheeler. This type of critical attitude can be contagious, leading both parties to paint themselves into opposite corners. Instead, pick up a seed of an idea to praise and expand upon, in the same way that a skilled jazz musician would riff on a phrase she picks up from another player’s solo.

Bend the rules of improv comedy
In the world of improv comedy, every ad-libbed line adds information that propels the story forward, writes Wheeler. Opening a scene by shouting “Hi!” is unacceptable. Instead, performers make what they call—perhaps borrowing from negotiators—an “offer,” such as “Brad! I never expected to see you here at the South Pole.”

Carrying the negotiation terminology further, comics say they’ve reached “agreement” when they build on the other person’s offer, like this response from Brad: “Yeah, when my company said it was giving me the southern territory, I was thinking Florida.” The offer and the agreement become the foundation on which the actors construct their relationship and imaginary world.

In a similar manner, wise negotiators understand that being tight-lipped and inscrutable will hurt them as much as it will the other party, according to Wheeler. They also follow another improv comedy rule: “Always agree—never negate.” That is, accept that you’re in Antarctica and don’t try to switch the story to warmer climes. In negotiation, this means trying to find a useful nugget in even the most preposterous statement.

Finally, try adopting the improv comic’s habit of using the phrase “Yes, and . . .” instead of but or no, as Twitter CEO and former improviser Dick Costolo does. “The word no is a verbal stop sign,” according to Wheeler. Artfully expressed nos (such as “Yes, and I would be happy to consider this idea in the future”) protect your core interests while enabling counterparts to save face as you jointly move the conversation in a more productive direction, writes William Ury in The Power of a Positive No: Save the Deal Save the Relationship—And Still Say No (Bantam, 2007).

The 80%-20% rule
Musician Ed Sarath estimates that musicians perform best when they’re 80% in their comfort zone and 20% outside it, a sweet spot that negotiators would be wise to strive for, Wheeler suggests. Be too comfortable, and you’ll skate through the process and reach a so-so agreement. But when you’re too nervous, you risk reaching the same average (or worse) result after freezing up at the table.

Plagued by performance anxiety and the fear of underperforming, negotiators often succumb to the latter pitfall, Wheeler’s research with psychologists Julianna Pillemer and Kim Leary shows. How can you manage your nerves? Preparation, that ubiquitous prescription, is important, of course. When we arm ourselves with solid facts and analyses, we improve our confidence and ability to be nimble at the table.

Techniques from other realms may translate here as well. In his book The Inner Game of Tennis: The Classic Guide to the Mental Side of Peak Performance (Random House, 1997), W. Timothy Gallwey advises players to distract themselves from the common fear of looking clumsy when hitting backhands by saying “Bounce” to themselves when the ball rebounds from the court and then “Hit” when it strikes the racket. This type of mantra replaces internal distractions with outward focus. In a similar manner, suggests Wheeler, negotiators can quiet anxious thoughts by focusing on the other party’s movements, expressions, and words.

Negotiators can also quiet
their inner critic by practicing mindfulness—a state of mind in which we accept our passing thoughts and emotions without judgment. Suppose, for example, that you feel your anger stirring in response to a threat from a counterpart. As a mindful negotiator, rather than either suppressing the anger or succumbing to it, you would simply register your irritation at the other person. Along these lines, psychologist Alison Wood Brooks’s research identifies emotional reappraisal to be an effective means of transforming anxiety into a productive state of mindful alertness. Nervous study participants who said “I’m excited” out loud performed much better on a task than did those who tried to suppress their fears.

By practicing improvisation techniques and addressing the sources of your anxiety, you should be able to enhance your ability to think on your feet in negotiation and reach more innovative, rewarding agreements.

The deal started with an offhand remark at a news conference. In September, as President Barack Obama threatened U.S. military action against Syria, a reporter asked U.S. secretary of state John Kerry if there were any way an attack could be avoided. Syrian president Bashar al-Assad “could turn over every single bit of his chemical weapons to the international community in the next week,” Kerry said, before dismissing such a development as unlikely, as reported by Reuters.

Unlikely or not, the idea spread like wildfire. Russian foreign minister Sergei Lavrov was the first to snap it up, issuing within days a proposal to draw down Syria’s stockpile of chemical weapons. The White House, Congress, Assad’s government, and the United Nations all quickly warmed to the prospect of resolving the Syria crisis diplomatically. Together, Kerry and Lavrov negotiated the terms of a deal in which the United States would drop the threat of military strikes if Syria dismantled its chemical weapons by mid-2014.

With an off-the-cuff remark, Kerry not only inspired a creative solution to a difficult problem but helped his boss back down from a threat that had proven highly unpopular. The moment epitomizes Kerry’s style as secretary of state, write Mark Landler and Michael R. Gordon in the New York Times. In contrast to the scripted, arm’s-length approach of his predecessor, Hillary Clinton, Kerry operates in hyperdrive, acting as lead negotiator as he jets from one hot spot to the next. Traveling the Middle East with Kerry “is a seat-of-the-pants experience,” writes Landler. “Itineraries are notional. Improvisation is the rule.”

This freewheeling style carries risks: Kerry has made gaffes and, in his rush to get to the next impromptu meeting, left key partners behind. But in his new book, The Art of Negotiation: How to Improvise Agreement in a Chaotic World (Simon & Schuster, 2013), Harvard Business School professor Michael Wheeler suggests that there is much the average business professional can learn from improvisatory negotiators like Kerry. Here we offer a few key insights from Wheeler’s book that can help you become a more adaptable, creative negotiator.

Are you over prepared?
Preparation is an essential stage in negotiation, as it is in many realms of life. But through their emphasis on researching interests, options, and alternatives, canonical negotiation texts such as Roger Fisher, William Ury, and Bruce Patton’s Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin Harcourt, 1992) can lead us to the false assumption that these critical factors are static, writes Wheeler. In fact, most elements of negotiation are constantly evolving throughout the process.

Wheeler asks you to imagine meeting with a new customer for the first time. She welcomes you to her office and makes one of the following three remarks:
■ “We’re looking forward to partnering with you. Let’s figure out a deal that works well for both of us.”
■ “Good that you could come. My colleagues have put you on a short list of possible providers for this contract.”
■ “It’s time for you to fish or cut bait. We like your proposal, but you’ve got to come way down in price to beat your competition.”

Each statement would likely trigger and warrant a different reaction from you, notes Wheeler. As this example suggests, it would be impossible to script responses to the wide range of attitudes you might encounter in the opening moments of a negotiation, let alone the unexpected remarks and questions you will receive further down the stretch.

Nor would you want to have a script at your side. Overpreparation can cause us to disregard the moments of good fortune and synergy that crop up during the process. The trick, writes Wheeler, is to borrow practices from fields where improvisation is encouraged and actively taught, including jazz, comedy, and sports.

The best improvisers from these realms do three things very well, according to Wheeler: (1) They pay close attention to the world around them, (2) they identify when and how to influence and adapt to others, and (3) they are proactive, taking considered risks to move the action forward.

Soloing and comping
Just as negotiators must assess when to take the lead and when to listen, jazz musicians switch off between soloing and “comping”—accompanying or complementing what the other ensemble members are playing, according to Wheeler. Though remembered for their solos, the jazz greats know when to listen deeply, making split-second decisions about what notes to play in response to what they hear. “None of this responsiveness can happen unless players are receptive and taking in one another’s gestures,” writes Frank J. Barrett in Yes to the Mess: Surprising Leadership Lessons from Jazz (Harvard Business Review Press, 2012).

Comping is equally important in negotiation. Through careful open-ended questioning and encouraging gestures, we can draw out useful information and keep talks moving in a productive direction. At the same time, we need to intuit when it’s time to sit back and absorb without judgment what the other party has to say.

If your counterpart makes three demands, two of which are out of the question, resist the urge to immediately condemn them, writes Wheeler. This type of critical attitude can be contagious, leading both parties to paint themselves into opposite corners. Instead, pick up a seed of an idea to praise and expand upon, in the same way that a skilled jazz musician would riff on a phrase she picks up from another player’s solo.

Bend the rules of improv comedy
In the world of improv comedy, every ad-libbed line adds information that propels the story forward, writes Wheeler. Opening a scene by shouting “Hi!” is unacceptable. Instead, performers make what they call—perhaps borrowing from negotiators—an “offer,” such as “Brad! I never expected to see you here at the South Pole.”

Carrying the negotiation terminology further, comics say they’ve reached “agreement” when they build on the other person’s offer, like this response from Brad: “Yeah, when my company said it was giving me the southern territory, I was thinking Florida.” The offer and the agreement become the foundation on which the actors construct their relationship and imaginary world.

In a similar manner, wise negotiators understand that being tight-lipped and inscrutable will hurt them as much as it will the other party, according to Wheeler. They also follow another improv comedy rule: “Always agree—never negate.” That is, accept that you’re in Antarctica and don’t try to switch the story to warmer climes. In negotiation, this means trying to find a useful nugget in even the most preposterous statement.

Finally, try adopting the improv comic’s habit of using the phrase “Yes, and . . .” instead of but or no, as Twitter CEO and former improviser Dick Costolo does. “The word no is a verbal stop sign,” according to Wheeler. Artfully expressed nos (such as “Yes, and I would be happy to consider this idea in the future”) protect your core interests while enabling counterparts to save face as you jointly move the conversation in a more productive direction, writes William Ury in The Power of a Positive No: Save the Deal Save the Relationship—And Still Say No (Bantam, 2007).

The 80%-20% rule
Musician Ed Sarath estimates that musicians perform best when they’re 80% in their comfort zone and 20% outside it, a sweet spot that negotiators would be wise to strive for, Wheeler suggests. Be too comfortable, and you’ll skate through the process and reach a so-so agreement. But when you’re too nervous, you risk reaching the same average (or worse) result after freezing up at the table.

Plagued by performance anxiety and the fear of underperforming, negotiators often succumb to the latter pitfall, Wheeler’s research with psychologists Julianna Pillemer and Kim Leary shows. How can you manage your nerves? Preparation, that ubiquitous prescription, is important, of course. When we arm ourselves with solid facts and analyses, we improve our confidence and ability to be nimble at the table.

Techniques from other realms may translate here as well. In his book The Inner Game of Tennis: The Classic Guide to the Mental Side of Peak Performance (Random House, 1997), W. Timothy Gallwey advises players to distract themselves from the common fear of looking clumsy when hitting backhands by saying “Bounce” to themselves when the ball rebounds from the court and then “Hit” when it strikes the racket. This type of mantra replaces internal distractions with outward focus. In a similar manner, suggests Wheeler, negotiators can quiet anxious thoughts by focusing on the other party’s movements, expressions, and words.

Negotiators can also quiet
their inner critic by practicing mindfulness—a state of mind in which we accept our passing thoughts and emotions without judgment. Suppose, for example, that you feel your anger stirring in response to a threat from a counterpart. As a mindful negotiator, rather than either suppressing the anger or succumbing to it, you would simply register your irritation at the other person. Along these lines, psychologist Alison Wood Brooks’s research identifies emotional reappraisal to be an effective means of transforming anxiety into a productive state of mindful alertness. Nervous study participants who said “I’m excited” out loud performed much better on a task than did those who tried to suppress their fears.

By practicing improvisation techniques and addressing the sources of your anxiety, you should be able to enhance your ability to think on your feet in negotiation and reach more innovative, rewarding agreements.