Using MoU’s to Build Partnerships without Pressure

Will Cross, NCSU Libraries

ALCTS Webinar

February 10, 2016

“The Librarian/Lawyer in his natural habitat”

Outline What is an MoU

Why Use an MoU

Drafting Practices

Case Studies: TRLN’s “Single Copy” Program

Library of Michigan & Minnesota’s “Regional Repository” Agreement

Questions

Memorandum of Understanding

• Mutually accepted expectations between parties who intend to work together towards a shared objective

• Intention that the agreement not be legally-binding

• Money (generally) doesn’t change hands

A Continuum of Promises

Legally Binding

• Faustian Bargain

• Formal Contract

Soft Law

• Memorandum of Understanding/Agreement (guidelines for behavior)

• Letter of Intent/Comfort (vague unenforceable terms)

• Record of Discussion/Meeting (“here’s what was said”)

Reputation

• Gentleman’s Agreement

• Scout’s Honor

• Pinky Swear

Why Have an MoU?

• Agreement before the Agreement: Expression of intention early in negotiations, forces people to come to the table

• To Avoid the Lawyers: Agreement between parties with differing legal regimes or lots of red tape

• Because We Have To: Helpful for administrative agencies, government partnerships, to comply with or sneak around Uniform Commercial Code definitions, and other technical requirements

• Because Contracts Make People Uncomfortable: Sometimes you want a contract but don’t want “a contract”

A carefully-crafted MoU for delicate negotiations

A Hastily-Scrawled MoU for my Friday Night Bar Trivia Team

A Slightly-Too-Cute MoU for this Webinar

This 2/10 ALCTS webinar is designed to teach participants about MoU’s

Speaker (Will) agrees to:

• Present useful information

• Use some images in his slides to help keep you from falling into a coma

• Wrap it up in plenty of time for the Q&A session that everyone’s really here for anyway

Listeners (you) agree to:

• Pay attention even though I can’t see what you’re doing

• Ask good questions that help you understand the issues

• Say nice things about Speaker (@tceles_b_hsup) and ALCTS (@ALCTS) on twitter

How to Make a Contract

• Offer - “I promise to . . .”

• Acceptance - “Okay, then I’ll . . .”

• Consideration - Everybody gets something

• Intention/Mutuality - Agreement “All of these people have legally-enforceable

promises. Only one has the power of

the Dark Side”

Contract Principles to Avoid (Unless you want a Contract by Another Name)

• Specific legal language or terms of art

• One Solution:

“This document is a Memorandum of Understanding and is not intended to create binding or legal obligations on either party.”

Contract Principles to Borrow

• Intention of the parties

• Clarity about why the agreement is being made

• Document as a failsafe, not a trap

• “Four corners” of the contract

How to Draft an MoU

Don’t Trust “Magic Words”

• Technical meaning obscures intention

• Makes it look more like a contract

• Talk to each other like humans

MoU’s are a Team Sport: Know Who Needs to Be Involved

Counsel’s Office?

Administration?

Lawyer in the Library?

THE PEOPLE ACTUALLY DOING STUFF?

Start with a Template

. . . But Don’t Stop There!

Welcome to Saul Bellow Land!

Anatomy of an MoU: 5 W’s and a Few More

• Who?

• What?

• Where?

• When?

• Why?

• How?

• How much?

• What if?

Anatomy of an MoU: 5 W’s and a Few More

• Who is involved?

• What are we trying to do?

• Where is this taking place?

• When are we starting and what deadlines exist?

• Why are we doing this in the first place?

• How will we get it done?

• How much are we willing to commit?

• What if it doesn’t work out?

Creating a Collaborative Collection Across Libraries

“Creating the Triangle Research Libraries Network” http://www.trln.org/about/mou.htm

• Who: NCSU, Duke, UNC-Chapel Hill, NCCU Libraries

• What: Create a partnership for library collaboration

• Where: Within each library and across the Research Triangle

• When: Starting as soon as practical and ongoing

• Why: Efficiency, meet shared aims

• How: Strategic partnership

• How much: Annual dues and time commitment

• What if: We can reconsider terms or withdraw

“Creating the Triangle Research Libraries Network”

Who

What

What If

How much

“Creating the Triangle Research Libraries Network”

How

Why

When

TRLN’s “Single Copy” Program

• Who: NCSU, Duke, UNC-Chapel Hill, NCCU

• What: Create a partnership for shared collections

• Where: Within each library and across the Research Triangle

• When: Starting as soon as practical and ongoing

• Why: Efficiency, cost-savings, build on collection strengths

• How: Strategic partnership that leverages strengths

• How much: As required by law

• What if: We can reconsider

Who

What &

Why

What if

How

How Much

A Partnership For Regional Depository Services

“Establishing the University of Minnesota Libraries as the Regional Depository Library for Michigan”

https://www.lib.umn.edu/govpubs/memorandum-2013

• Who: University of Minnesota Libraries and Library of Michigan

• What: Store and make accessible depository materials

• Where: The state of Michigan

• When: Ongoing

• Why: To meet statutory requirements

• How: Storage, copying, and other services

• How much: As needed

• What if: Revisit annually

Why

Who & Why

What if

How

Where

When

A Great Place to Start your own MoU: UCLA’s Rights Toolkit

Final Thought

Questions?

Sources

• Love on a Book by Sebastien Wiertz licensed under CC-BY

• Signature by Sebastien Wiertz licensed under CC-BY

• Contract signing by Justis- og beredskapsdepartementet licensed under CC-BY-SA

• worst car wash ever by woodleywonderworks licensed under CC-BY

• Star Wars Celebration by Pop Culture Geek Licensed under CC-BY

• Duck by Matthew licensed under CC-BY

• Questioned Proposal by Ethan Lofton licensed under CC-BY

• Comme une envied colorior, by Wierz licensed under CC-BY-SA

• Roller Coaster “Python” by Kraan licensed under CC-BY-NC

• Bookshelf Spectrum 2.0 – mission accomplished by Bellini licensed under CC-BY-NC-SA

• Remote Storage Facility by Smith licensed under CC-BY-NC-SA

• Stop collaborate and listen by Jim Flanagan licensed under CC-BY-NC-SA

• My Paper Clip Discovers Brassai by Sebastien Wiertz licensed under CC-BY