By Owen McCall, student at Loyola New Orleans College of Law
This blog post is the culmination of a semester of learning and research on the process of contracting through a community-oriented lens. My research looked at what lawyers tend to focus on in contracts, what communities have to gain or lose from contracts, and what relationships are built (or broken) through the contracting process. I focused on the gaps in current contracting practices and what steps we can take to fill those gaps, in order to build a better contract.
Local communities and organizations sometimes find themselves wanting to partner with larger organizations or technical experts – but, it can be difficult to navigate the power dynamics and various legal agreements that are involved. This blog serves as a short guide to equitable contracting for smaller grassroots groups, Indigenous communities, institutional actors, academic & technical partners, and larger organizations.
What’s the issue with current contracting practices?
Communities or grassroots groups may have an identified need, such as designs for a community facility, where the best way to fulfill that need is to partner with a larger organization or with a technical expert. This can create an inherent power imbalance – where one group needs something (sometimes quickly), and the other is their only available avenue to filling that need. The smaller group may feel pressured to agree to standard terms, which can be coercive, unfair, and exploitative. For example, taking on disproportionate liability, facing punitive penalties for the inability to perform contractual duties, or losing ownership of cultural information.
Traditional contracting processes and dominant economic systems prioritize speed over function, profits over people, and corporations over communities. Unsurprisingly, this way of working causes big issues for those who partner with smaller under-resourced communities and for the communities themselves. Boilerplate legal agreements are commonly developed by large entities with lots of resources to protect their interests. However, when a small community does not have the same resources as the larger entity, (such as access to legal counsel, funding, or support in the case of a disagreement), the results of any disagreement can be disastrous for the smaller community.
For example, a contract for engineering services may place all liability onto the smaller community, as a standard and expected condition of the donation of labor. A larger entity might be able to assume the liability without issue, but for the small community, taking on that liability could be crushing.
Another challenge that may arise is information-sharing. The larger group may simply assume that they would own any and all information shared or produced during the contract, and be unaware of appropriate protocols for protecting community knowledge. Smaller communities, especially Indigenous communities, have historically been erased and devalued when putting together works of knowledge. The community may want to retain the rights to any information shared or produced, particularly cultural information.
Boilerplate contracts are simply not made to account for the variety of needs present in communities across the world. Contracting processes can – and should – lead towards equity and community building, rather than exploitation.
How can we change contracting practices to be more equitable?
Starting with Care
Intent and care are a great start. Many contract-makers, especially those who typically work in corporate fields, may not even realize that their usual contracts are harming communities they work with. Taking notice is the first step. As a larger group or institutional actor in partnership with a smaller community, acknowledging your positionality in the contracting process – without taking it as a reflection of your personal values – is important.
Seeing Contracting as an Intentional Process
We also need to work to change our ideas about a contract’s function. Instead of thinking of a contract as the prize at the end of the road, consider reframing contracting as a thoughtful process that builds relationships, trust, and partnership.
The contracting process takes time – although it might be tempting to speed through the process, the more we intentionally explore perspectives and build relationships, the more tailored (and ultimately effective) the final product becomes.
Contracts should be focused on communication, rather than protecting our own interest or maximizing profits. Contracts communicate each party’s duties, roles, and responsibilities. They also communicate purpose – language that may need to be added to the contract.
Communication is a major part of the contract formation process. Instead of simply sending over a routine template, take the time to really communicate with the other party. Take the time to learn about your own templates and what they include. Learn about the community’s wants and needs, their fears, and their abilities. Encourage them to be honest with you about what’s realistic for them to accomplish, and return that honesty. Always share the reasoning behind a term or a decision.
At every step of the process, check in with the other party to ensure you’re on the same page. Consider asking instead of assuming, even if the answer seems “obvious.” Provide all the information, and allow the other party to choose what’s best for them. These practices build trust between parties, forming strong relationships that help build the best contract possible.
Becoming Comfortable with Discomfort
When disagreement occurs, be ready to adapt and listen. Disagreement between parties is part of the contracting process – conflict is a necessary and constructive part of being in partnership. It may feel disquieting to sit with conflict, but acknowledging the discomfort of disagreement is vital. When asking for change in the contracting process, you may be met with some pushback, but often individuals and organizations are able to come to an agreement with the realization that power imbalances exist and impact communities. A strong partnership will acknowledge the power disparities, move through, with, and past disagreement, and ultimately build common ground between the parties.
What should our final contract look like?
Your final product will, of course, be unique to your needs and the needs of your community. However, there are some terms you should keep in mind.
First, ensure that all terms are clear and precise.
Make sure deadlines are realistic, understood, and written.
Liability should be taken on by the party with the most power, or shared equitably among the parties, ideally.
Information-sharing terms should be clear and leave ownership rights in the hands of the party who produced or shared the information, if they desire.
Contract modification processes should be clear and as easy as possible, to account for unforeseen circumstances like environmental disaster, widespread illness, or intracommunity tensions that must be addressed before moving forward.
Contract termination or exit processes should account for the same unforeseen circumstances, and should give grace to the community.
For a downloadable PDF guide of questions to ask yourself during the contracting process, click here.
Who’s doing this work already?
Lots of people are working to adapt contracting to fit the needs of their communities. If you work in the legal field, ask around! You might be able to find a resource closer than you think. Below are some organizations exploring equitable contracting.
Social Impact Commons: A national network and community of practice advancing management commons as a model of equitable and inclusive resource sharing for the nonprofit sector—a next-generation approach to fiscal sponsorship. Their members have access to tools, templates, and guidance for fiscal sponsorship. Their blog also has free resources for anyone interested in commoning. You can find a blog post on equitable contracting here.
National Performance Network: A national network of arts workers cultivating long-term relationships and promoting cultural equity based in Bulbancha, also currently known as New Orleans. They seek to build a collaborative, non-hierarchical ecosystem based on racial and cultural justice. In 2022, as part of their Creating New Futures efforts, they formed a Contracts Working Group to create contractual documents built from a place of justice and transparency, clarifying the terms of the engagement for both parties to the contract (the Artist/Company and the Presenter) not only legally, but in terms of relationship and community. The findings from the Contracts Working Group can be found here. This resource is especially helpful for those in the performance or arts sector, but their principles can be mirrored by anyone.
Catalyst Dance: A community of collaborators focused on Land Back practices in the world of large-scale performance and dance gatherings. Their projects and writings focus on decolonization. All partners entering into agreements with Catalyst are required to agree to a Decolonization Rider, which ensures all partners are committed to the process of decolonization through terms focusing on Indigenous knowledge protection, Indigenous communication, and other community-oriented necessities. You can find Catalyst’s decolonization rider here.
About the Author
Note from Owen: My very first class in law school was Contracts I – three hours a week dedicated to how contracts were formed. We learned about offer, acceptance, and consideration, read cases where contracts were formed on napkins in bars, through advertisements, and via mail. But there was something missing – what does the contracting process look like? In a class called “Community-Based Research,” I learned that the process was complicated, and often inequitable.
This blog post is the culmination of a semester of learning and research on the process of contracting through a community-oriented lens. My research looked at what lawyers tend to focus on in contracts, what communities have to gain or lose from contracts, and what relationships are built (or broken) through the contracting process. I focused on the gaps in current contracting practices and what steps we can take to fill those gaps, in order to build a better contract.
Note from Dr. Alessandra Jerolleman: I run the Community-Based Research lab at Loyola, where students are introduced to Participatory Action Research, a community-based relational research model utilized in the social sciences, alongside community lawyering. Students learn to identify a primary need, challenge, or opportunity, from which to develop a research plan; along with how to identify the legal and regulatory components of their topic, conduct research, and collaborate with community partners and to see their research in action. The Lab teaches students how to engage in democratic change processes, apply legal skills to community-based problems, and collaboratively design research and advocacy strategies.
Dr. Jerolleman is a Climigration Network Council Member and long-time community-based action researcher in the climate justice and adaptation space.