So, you’ve heard about this thing called a Memorandum of Understanding, or MOU. It sounds important, right? And it is. Basically, it’s a document that lays out what parties agree on before they get into something more formal. Think of it as a handshake on paper, a way to make sure everyone’s on the same page before diving deeper. We’ll break down what an MOU really is, why it matters, and how it works in different situations. It’s not quite a contract, but it’s definitely more than just a casual chat. Let’s get into it.
Key Takeaways
- A Memorandum of Understanding (MOU) is a document that outlines the preliminary understanding and agreement between two or more parties. It’s not usually a legally binding contract but serves as a statement of intent and a roadmap for future actions or formal agreements.
- Key components of an MOU typically include the identification of parties, the purpose of the agreement, the scope of cooperation, responsibilities, and sometimes a timeline. Clarity in these areas is important.
- MOUs are often used as a precursor to more formal contracts or agreements, helping to clarify terms and expectations early in a negotiation process. They can also be used in mediation to document points of agreement.
- While MOUs are generally not legally enforceable in the same way as contracts, they carry significant weight due to the goodwill and intent they represent. Some specific clauses within an MOU might be designed to be binding.
- Crafting an effective MOU involves clear language, a logical structure, and a focus on the shared objectives of the parties involved. It should accurately reflect the understanding reached.
Understanding the Memorandum of Understanding
Defining the Memorandum of Understanding
A Memorandum of Understanding, often shortened to MOU, is a document that outlines a convergence of will between two or more parties. It signifies a common line of action or understanding. Think of it as a preliminary agreement, a handshake on paper before the formal contract is drawn up. It’s not usually a legally binding contract in itself, but it lays the groundwork for one. MOUs are used in all sorts of situations, from international diplomacy to business partnerships and even within organizations.
Key Components of a Memorandum of Understanding
While MOUs can vary, they generally include several core elements to make sure everyone is on the same page. These components help clarify the purpose and scope of the understanding.
- Introduction: Briefly states the parties involved and the general subject matter.
- Purpose/Objectives: Clearly defines what the parties aim to achieve together.
- Scope of Agreement: Outlines the specific areas or activities covered by the MOU.
- Responsibilities: Details what each party agrees to do.
- Timeline: Specifies any relevant dates or durations for the understanding.
- Financial Arrangements (if any): Describes how costs or contributions will be handled.
- Confidentiality: Addresses how sensitive information will be protected.
- Termination Clause: Explains how the MOU can be ended.
Purpose and Function of a Memorandum of Understanding
The main job of an MOU is to formalize a mutual understanding and commitment between parties. It serves as a roadmap, guiding future actions and discussions. It’s particularly useful when parties want to collaborate on a project or initiative but haven’t yet worked out all the fine details of a formal contract. An MOU helps prevent misunderstandings by putting key points in writing. It can also be a stepping stone towards a more detailed agreement, providing a framework for those later negotiations. It shows a serious intent to work together, which can be important for securing resources or gaining support.
The Role of a Memorandum of Understanding in Dispute Resolution
Memorandum of Understanding as a Precursor to Formal Agreements
Sometimes, before parties can even think about a final, binding contract, they need to get on the same page about the big picture. That’s where a Memorandum of Understanding (MOU) often comes in handy during dispute resolution. It’s not the end of the road, but more like a signpost showing everyone which direction they’re heading. Think of it as a preliminary agreement, a way to jot down the main points everyone has agreed upon so far. This helps make sure everyone is thinking along the same lines before diving into the nitty-gritty details of a more formal document. It’s a way to confirm shared understanding and commitment to moving forward.
Distinguishing Memorandum of Understanding from Settlement Agreements
It’s easy to mix up an MOU with a settlement agreement, but they serve different purposes. A settlement agreement is usually the final document that wraps up a dispute. It’s often legally binding and details exactly how the conflict will be resolved, including specific actions, payments, or terms. An MOU, on the other hand, is more of a stepping stone. It outlines the general understanding and intent of the parties but might not be legally enforceable on its own. It’s like agreeing on the destination before you map out every single turn on the road.
Here’s a quick look at the differences:
| Feature | Memorandum of Understanding (MOU) | Settlement Agreement |
|---|---|---|
| Purpose | Outline intent, preliminary terms | Finalize dispute resolution |
| Binding Nature | Generally non-binding | Typically legally binding |
| Detail Level | Broad strokes, general principles | Specific terms, obligations, actions |
| Stage in Process | Early, pre-agreement | Final, post-negotiation |
Memorandum of Understanding in Mediation Processes
During mediation, an MOU can be a really useful tool. When parties are working with a mediator to sort out a disagreement, they might reach a point where they agree on the main issues and the general direction for a solution. At this stage, drafting an MOU can capture this progress. It confirms that the parties have a shared vision for resolving the dispute, even if the exact wording of the final settlement isn’t hammered out yet. This document can then guide the drafting of the more detailed settlement agreement. It helps keep the momentum going and ensures that the mediator and parties are working towards a concrete outcome.
- Captures preliminary consensus: Records agreement on key issues and principles.
- Guides final agreement: Provides a framework for drafting the settlement.
- Confirms commitment: Shows parties are serious about resolving the dispute.
- Reduces misunderstandings: Clarifies shared understanding before detailed drafting.
Key Principles Governing Memoranda of Understanding
When parties come together to draft a Memorandum of Understanding (MOU), a few core ideas guide the whole process. These aren’t just suggestions; they’re the bedrock that helps make sure the MOU is fair, useful, and respected by everyone involved.
Voluntary Participation and Agreement
At its heart, an MOU is about people choosing to work together. No one should ever feel forced into signing one. This means that everyone involved has to genuinely agree to the terms laid out. It’s not about one side pushing the other; it’s about a mutual decision to move forward on a shared path. If there’s any doubt about someone’s willingness, the whole agreement can fall apart before it even starts.
- Informed Consent: Parties must fully understand what they are agreeing to. This involves clear communication about the MOU’s purpose, scope, and implications.
- Right to Withdraw: While the goal is agreement, parties generally retain the right to step away from the process if they feel it’s not working for them, though this might have consequences depending on the context.
- Good Faith Negotiation: Even though it’s voluntary, there’s an expectation that everyone will participate honestly and try to find common ground.
Confidentiality in Memoranda of Understanding
What’s discussed and agreed upon during the creation of an MOU often needs to stay private. This confidentiality is key because it allows people to speak more freely, share sensitive information, and explore options without worrying that their words will be used against them later. Think of it as a safe space for negotiation.
There are, of course, limits. Certain situations might require information to be shared, like if there’s a threat of harm or illegal activity. But generally, the understanding is that the discussions remain between the parties involved.
Mediator Neutrality and Impartiality
If a mediator is involved in helping parties reach an MOU, their role is strictly neutral. They aren’t there to take sides or push for a particular outcome. Instead, they act as a facilitator, guiding the conversation and helping parties communicate effectively. This impartiality is vital for building trust. Parties need to believe that the mediator is working for a fair process, not for one side over the other. A mediator’s job is to help the parties find their own solutions, not to provide them.
The mediator’s commitment to neutrality means they do not have a personal stake in the agreement reached. Their focus is on the process and facilitating communication, allowing the parties themselves to retain control over the substance of their agreement.
Crafting Effective Memoranda of Understanding
So, you’ve gone through mediation, and things are looking up. You’ve reached a point where everyone agrees on the main points. That’s fantastic! Now comes the part where you actually write it all down. This is where the Memorandum of Understanding, or MOU, comes in. Think of it as the blueprint for your agreement. Getting this right is super important because it sets the stage for what happens next.
Essential Elements for Clarity and Precision
When you’re writing up an MOU, the goal is to make sure everyone understands exactly what’s been agreed upon. No room for "I thought you meant…" later on. This means being really specific. You’ll want to clearly state:
- The Parties Involved: Who exactly is agreeing to what? List all names and their roles.
- The Subject Matter: What is this agreement about? Be as detailed as possible.
- Key Terms and Conditions: This is the meat of it. What are the specific actions, responsibilities, or understandings each party has committed to?
- Timeline: If there are deadlines or specific dates for actions, put them in writing.
- Any Conditions: Are there any "if this, then that" scenarios? Spell them out.
The clearer you are now, the smoother things will be down the road. It’s like giving directions – the more precise you are, the less likely someone is to get lost.
Structuring the Memorandum of Understanding Document
How you organize your MOU matters. A well-structured document is easier to read and understand. Typically, you’ll see:
- Title: Clearly state "Memorandum of Understanding."
- Introduction: Briefly state the purpose of the document and identify the parties.
- Background: A short summary of the situation or dispute that led to the mediation.
- Agreement Points: This is where you list out all the agreed-upon terms. Using bullet points or numbered lists here is a good idea.
- Next Steps: What happens after the MOU is signed? Are there further actions required?
- Signatures: A place for all parties to sign and date, showing their agreement.
It’s also a good idea to include a clause about the MOU’s enforceability, or lack thereof, depending on the context. Sometimes, an MOU is a stepping stone to a more formal contract, and it’s important to state that.
Language and Tone in Memoranda of Understanding
When you’re writing an MOU, keep the language straightforward. Avoid overly legalistic terms if possible, unless they are necessary to define something precisely. The tone should be professional and neutral. You’re not trying to win an argument here; you’re documenting an agreement. Think of it as a factual record of what was decided. Using simple, direct sentences helps prevent misunderstandings. For instance, instead of saying "The parties shall endeavor to facilitate the optimal utilization of resources," you might say, "Both parties will work together to use resources effectively."
Legal Frameworks and Memoranda of Understanding
When parties put together a Memorandum of Understanding (MOU), it’s not just a casual chat. There’s a whole legal structure that underpins it, even if the MOU itself isn’t always a binding contract. Think of it as the rules of the road for how people are going to work together or resolve a disagreement before they get to something more formal.
Applicable Laws and Regulations
Different places have different rules about how MOUs are treated. In the U.S., there isn’t one single law that covers every MOU everywhere. It really depends on what the MOU is about and where it’s being used. For example, if an MOU is about something that falls under federal law, like environmental protection or certain business dealings, then federal regulations might come into play. If it’s more local, like an agreement between two city departments, then state or local laws would be more relevant. It’s a bit of a patchwork, honestly. The key is to figure out which laws might apply to the specific situation the MOU is trying to address. Sometimes, an MOU might touch on areas like contract law, administrative law, or even specific industry regulations. It’s not usually a free-for-all; there are usually guidelines, even if they aren’t always obvious.
Enforceability of Memoranda of Understanding
This is where things can get a little tricky. Generally, MOUs are seen as statements of intent, not hard-and-fast legal promises. They show that parties have agreed on a plan or a framework for cooperation. However, they aren’t typically enforceable in court like a signed contract would be. There are exceptions, though. If an MOU contains specific language that clearly shows the parties intended to create legally binding obligations, or if one party acts in reliance on the MOU to their detriment, a court might consider parts of it enforceable. It really comes down to the wording and the context. It’s usually best to assume an MOU is non-binding unless it explicitly states otherwise or is structured very carefully to create legal duties.
The Uniform Mediation Act’s Influence
When MOUs come out of a mediation process, the Uniform Mediation Act (UMA) can have a significant impact, especially in states that have adopted it. The UMA is designed to promote mediation by providing clear rules, particularly around confidentiality. It generally states that communications made during mediation, including anything that leads to an MOU, are privileged and cannot be used in later court proceedings. This protection encourages parties to speak more freely during mediation, knowing their words won’t be held against them. The UMA also clarifies that a mediated MOU is generally not binding unless it meets the requirements of a contract and is signed by the parties. So, while the UMA helps protect the process of reaching an MOU, it also reinforces that the MOU itself needs to be properly formed to have legal weight.
Navigating Challenges in Memoranda of Understanding
Addressing Power Imbalances
Sometimes, one person in a negotiation has a lot more influence, money, or information than the other. This can make it tough for the less powerful person to speak up or get a fair deal. Mediators are trained to spot these differences. They work to make sure everyone gets a chance to share their side and that the agreement is something both people can actually live with. It’s about leveling the playing field, even just a little.
- Mediator’s Role: The mediator might use private meetings (caucuses) to talk with each person separately. This gives the person with less power a safer space to express their concerns without feeling pressured.
- Information Sharing: Mediators can help ensure both sides have access to the information they need to make good decisions.
- Reality Testing: They can gently question assumptions or unrealistic expectations from the more powerful party to encourage a more balanced perspective.
A Memorandum of Understanding should reflect a genuine meeting of the minds, not a situation where one party felt compelled to agree due to unequal standing. The process aims for fairness, even when starting points are different.
Managing Impasse and Deadlock
It’s not uncommon for negotiations to hit a wall. This is called an impasse or deadlock. People might get stuck on one issue, or emotions can run high, making it hard to move forward. When this happens, the mediator needs to step in with different strategies.
- Taking a Break: Sometimes, just stepping away for a short time can help everyone cool down and come back with fresh eyes.
- Exploring Underlying Interests: Instead of focusing on what people say they want (their position), the mediator might help them uncover why they want it (their interests). This can open up new ways to solve the problem.
- Brainstorming Options: The mediator can encourage the group to come up with as many ideas as possible, without judging them at first. This can lead to creative solutions that weren’t obvious before.
Exceptions to Confidentiality
While mediation is generally confidential, meaning what’s said in the room stays there, there are a few important exceptions. These are usually in place to protect people or prevent serious harm.
- Threats of Harm: If someone threatens to hurt themselves or others, the mediator may need to break confidentiality to get help.
- Abuse or Neglect: In cases involving child abuse or neglect, or elder abuse, mediators often have a legal duty to report it.
- Fraud or Criminal Activity: If illegal activity is revealed during mediation, there might be a requirement to disclose it.
It’s important for everyone to understand these exceptions before mediation begins, usually outlined in the initial agreement to mediate.
Types of Mediation and Their Relation to Memoranda of Understanding
Mediation isn’t a one-size-fits-all kind of thing. It’s actually pretty varied, and how it works often depends on what kind of mess you’re trying to sort out. Because of this, the documents that come out of it, like Memoranda of Understanding (MOUs), can look a bit different too. Let’s break down a few common types.
Commercial Mediation Agreements
When businesses have a disagreement, say over a contract that went sideways or a partnership that’s gone sour, they might turn to commercial mediation. The goal here is usually to sort things out quickly so everyone can get back to business, and importantly, keep those valuable business relationships intact. Because so much money and reputation can be on the line, these mediations often involve lawyers and people with specific industry knowledge. The MOU that comes out of this is usually pretty detailed. It’s not just a handshake agreement; it’s a formal document that spells out exactly what each party will do, often with timelines and specific deliverables. Think of it as a mini-contract that sets the stage for future dealings or officially closes the chapter on the dispute.
- Key elements often include: Specific financial settlements, revised contract terms, intellectual property rights, and future business protocols.
- It’s common for parties to exchange detailed financial statements and relevant business documents before the mediation even begins.
- The mediator in these cases usually has a strong background in business law or the specific industry involved.
In commercial mediation, the MOU serves as a bridge. It solidifies the immediate resolution while also laying the groundwork for continued, or at least orderly, future interactions between the parties.
Family Mediation Outcomes
Family disputes, like divorce, child custody arrangements, or disagreements over parenting plans, are incredibly sensitive. Family mediation focuses on helping people work through these tough issues in a way that’s less adversarial than court. The aim is to create solutions that work best for everyone involved, especially children. The MOU here, often called a ‘Memorandum of Understanding’ or sometimes a ‘Parenting Plan Agreement,’ is all about setting clear expectations for the future. It might cover how assets will be divided, how much child support will be paid, or how parents will share time with their kids. The language tends to be more personal and focused on the well-being of the family members.
- Common topics covered: Child custody schedules, spousal support, division of property and debts, and communication protocols between parents.
- Mediators in family cases are trained to handle high emotions and focus on the best interests of any children involved.
- These agreements are designed to be practical guides for day-to-day life post-separation.
Workplace Mediation Documentation
When conflicts pop up at work – maybe between colleagues, or between an employee and management – workplace mediation can be a lifesaver. The main goal is to get people talking again, fix misunderstandings, and make sure the workplace stays productive and positive. The MOU here is about getting the working relationship back on track. It might outline how people will communicate going forward, clarify roles and responsibilities, or set expectations for behavior. It’s less about legal settlements and more about practical steps to improve the day-to-day working environment. The focus is on restoring functionality and preventing future issues.
- Typical outcomes include: Agreements on communication methods, revised job duties, conflict resolution strategies, and commitments to professional conduct.
- Often, HR departments are involved, either facilitating the mediation or ensuring the agreement aligns with company policies.
- These MOUs are crucial for maintaining team cohesion and overall organizational health.
These different types of mediation show just how adaptable the process is. And in each case, the Memorandum of Understanding plays a key role in turning discussions into clear, actionable steps.
The Process of Reaching a Memorandum of Understanding
Getting to a Memorandum of Understanding (MOU) isn’t usually a single, sudden event. It’s more like a journey with several distinct phases. Think of it as building something together, brick by brick. First, everyone involved needs to agree that they want to try and work things out. This is the initial agreement to even talk, setting the stage for what’s to come.
Stages of Negotiation and Agreement
The core of reaching an MOU involves negotiation. This is where parties discuss their needs, concerns, and what they hope to achieve. It’s not just about stating what you want (your position), but understanding why you want it (your interests). A mediator often helps here, guiding the conversation so it stays productive and doesn’t just turn into an argument. They might use different techniques to help people see things from another angle or find common ground.
- Convening: This is the very first step, where the mediator brings everyone together, explains the process, and gets initial thoughts on the issues at hand.
- Exploration: Parties share their perspectives and underlying needs. This is where understanding really starts to build.
- Option Generation: Brainstorming potential solutions without immediate judgment.
- Bargaining: Evaluating the generated options and making proposals and counter-proposals.
- Agreement: Finalizing the terms that everyone can accept.
The Role of Caucuses in Drafting
Sometimes, talking in a big group just doesn’t work. That’s where caucuses come in. A caucus is a private meeting between the mediator and one party. It’s a safe space to talk more openly, perhaps about things that are difficult to say in front of everyone else. The mediator can use these private sessions to explore underlying interests more deeply, test the reality of certain proposals, or help a party think through their options without feeling pressured. Information shared in a caucus is kept confidential, unless the party agrees it can be shared with the other side. This confidentiality is key to building trust and allowing for more candid discussions, which can be really helpful when you’re trying to draft the actual terms of an agreement.
The mediator’s skill in managing these private conversations is often what helps break through impasses and move parties closer to a workable solution. It’s about creating tailored communication channels that suit the specific dynamics of the dispute.
Formalizing the Agreement
Once the parties have hammered out the details and feel they’ve reached a consensus, the next step is to put it all down on paper. This is the formalization stage. The mediator, or sometimes the parties themselves with legal help, will draft the Memorandum of Understanding. It needs to be clear, specific, and leave no room for misinterpretation. This document outlines exactly what has been agreed upon, who will do what, and by when. Signing the MOU signifies a commitment to the agreed-upon terms, marking the successful conclusion of the process and the beginning of putting the agreement into action.
Memorandum of Understanding in Various Contexts
Business and Commercial Applications
When businesses run into disagreements, especially over contracts or partnerships, a Memorandum of Understanding (MOU) can be a really useful first step. It’s not usually a final, legally binding contract, but more like a handshake agreement on paper that outlines what both sides intend to do. Think of it as a roadmap before you start building something big. It helps clarify expectations and can prevent misunderstandings down the line. For instance, if two companies are planning a joint venture, an MOU can detail how they’ll share costs, responsibilities, and profits, even before the lawyers have drafted the full partnership agreement. This clarity is key to keeping things moving smoothly.
- Key areas where MOUs are common in business:
- Joint ventures and strategic alliances
- Partnership agreements
- Intellectual property sharing
- Supply chain arrangements
- Research and development collaborations
MOUs in a commercial setting serve as a critical bridge between initial discussions and formal contractual obligations. They allow parties to test the waters, confirm mutual understanding, and commit to a general direction without the immediate burden of legally binding commitments, thereby reducing risk and facilitating progress.
Community and Interpersonal Disputes
Beyond the boardroom, MOUs pop up in community settings too. Imagine a neighborhood dispute over a shared fence or a disagreement between local organizations about how to use a community space. An MOU can help neighbors or groups outline their shared goals and how they plan to work together. It’s about finding common ground and agreeing on a path forward, even if the issues are personal or local. It’s a way to formalize an understanding without necessarily involving lawyers or courts, which can be overkill for many everyday conflicts. The focus here is often on preserving relationships and finding practical, local solutions.
- Examples of MOUs in community settings:
- Neighbor agreements on property lines or shared amenities
- Community group collaborations on local projects
- Resolving disputes between local associations
- Establishing shared responsibilities for public spaces
Governmental and Inter-Agency Agreements
Government agencies, whether local, state, or federal, frequently use MOUs. When different departments or even different levels of government need to work together on a project, an MOU is the go-to document. It spells out who is responsible for what, how resources will be shared, and what the overall objectives are. For example, a city police department and a federal agency might sign an MOU to coordinate efforts on a specific type of crime. This helps ensure everyone is on the same page and that public resources are used effectively. It’s a way to formalize cooperation and define roles clearly.
| Agency A | Agency B | Shared Responsibility | Timeline |
|---|---|---|---|
| City PD | FBI | Joint Task Force | 2 Years |
| EPA | State DEQ | Water Quality Study | 1 Year |
| FEMA | Local EMS | Disaster Response | Ongoing |
Best Practices for Memoranda of Understanding
Ensuring Informed Consent
Making sure everyone involved truly understands what they’re agreeing to is a big deal. It’s not just about getting a signature; it’s about genuine agreement. This means explaining the process clearly, what the Memorandum of Understanding (MOU) will cover, and what it won’t cover. Parties need to know that their participation is voluntary and that they have the right to walk away if they feel it’s not working for them. Informed consent means no surprises down the road.
Maintaining Professionalism and Competence
Whether you’re drafting an MOU or participating in the process that leads to one, keeping things professional and competent is key. This involves being prepared, communicating respectfully, and sticking to the facts. Mediators, in particular, need to show they know their stuff, stay neutral, and manage the process effectively. It’s about building trust so that the agreement reached feels solid and fair.
Reviewing and Updating Agreements
Sometimes, an MOU isn’t the final word, or circumstances change. It’s good practice to have a plan for reviewing the agreement periodically, especially if it’s meant to guide an ongoing relationship or project. This doesn’t mean you’re looking for loopholes, but rather that you’re open to making adjustments if the situation evolves. Think of it as a living document that can adapt. This proactive approach can prevent future misunderstandings and keep the original intent of the agreement alive.
Wrapping Things Up
So, we’ve gone over what a Memorandum of Understanding, or MOU, really is. It’s not quite a contract, but it’s definitely more than just a handshake agreement. Think of it as a solid plan that shows everyone’s on the same page before diving into bigger commitments. Whether you’re dealing with business partners, community groups, or even international relations, getting the details down in an MOU can save a lot of headaches later. It helps clarify goals, roles, and what everyone expects. While it might seem like just another piece of paper, a well-written MOU can be a really useful tool for making sure projects and collaborations move forward smoothly and with fewer surprises. It’s all about setting clear expectations from the start.
Frequently Asked Questions
What exactly is a Memorandum of Understanding (MOU)?
Think of an MOU as a handshake agreement on paper before a big deal is finalized. It’s a document that outlines what people or groups plan to do together. It shows they’re on the same page about their goals and how they’ll work towards them, even though it’s usually not a legally binding contract.
What are the main parts of an MOU?
An MOU usually includes who is involved, what they want to achieve, the steps they’ll take, and sometimes a timeline. It’s important to be clear about everyone’s responsibilities so there are no surprises later on.
Why do people use MOUs instead of just making a formal contract right away?
MOUs are great for early stages. They help clarify ideas and show commitment without getting bogged down in legal details. It’s like planning a trip before booking the flights – you figure out where you want to go and what you want to see first.
Can an MOU help settle a disagreement?
Yes, sometimes! An MOU can be a stepping stone to a final agreement in a dispute. It can outline the basic understandings reached during talks, making it easier to create a more detailed settlement later. It shows that progress is being made.
Is an MOU the same as a settlement agreement?
Not quite. A settlement agreement is usually the final, legally binding document that wraps up a dispute. An MOU is often a preliminary step, showing initial agreement on key points, but it might not have the same legal force.
What makes an MOU effective?
Clarity is key! An effective MOU uses simple, straightforward language. It clearly states who is doing what, when, and why. Avoiding jargon and being precise helps everyone understand and follow through.
Are MOUs legally enforceable?
Generally, MOUs are not meant to be legally binding contracts. They express intent and understanding. However, if an MOU is written in a way that looks like a contract, or if the parties act as if it’s binding, a court might consider it enforceable in some situations. It’s best to be clear about its non-binding nature.
What’s the most important thing to remember when creating an MOU?
The most important thing is that everyone involved truly agrees to what’s written down and understands it. It should be a fair reflection of the parties’ shared goals and intentions, created through open and honest communication.