Contracts 101 - Taught by very long-winded attorney

For the second time, Martin and I worked on applications and contracts for our new agencies. (One agency will update our home study and help us quickly finalize our dossier. The other is the actual placement agency for our Russian adoption.) This time around, however, I asked more questions about the documents. I made sure they clarified exactly what fees will be charged, exactly what services each fee included, and when the fees will be due. Where the contractual language in their agreement or policy and procedures didn't line up with my understanding, I doubled checked with the agency again. They promptly answered my questions and clarified all the terms in writing. Then, I marked-up the contract by crossing out items I didn't agree with and inserting language that reflected our actual agreement. It was not an adversarial process. They weren't appalled that I dared question their contract terms. They didn't tell me to take it or leave it. We simply reached a mutual agreement.

Isn't this how it is supposed to work every time we sign a contract? Why then didn't I do that with our former agency?

My dear husband, Martin, in all his wisdom, told me to insert a clause in the contract with our previous agency. He wanted them to agree that if the agency didn't receive its Russian re-accreditation within six months that they would refund our $700 fee. For some reason, I didn't listen to him. I convinced him (and myself) that of course they would be re-accredited in the very new future. After all, they are a big, well respected agency who was among one of the first to be re-accredited when a similar situation occurred in 2005. We had been assured that this was only a temporary thing and it wouldn't cause any delays out of the ordinary ... of course, that was said with all the standard disclaimers of "we have no control over the process", "no guarantees", "international adoption in Eastern Europe is like shifting sand", "expect changes and delays", "you must be flexible", etc., etc.

I am not faulting our previous agency at all. What I am questioning is why "I" wasn't more proactive in negotiating our contract with them. That's what I do. I get paid to negotiate contracts on a daily basis. As my kids would say, "Duh!" I have no problem going toe to toe with attorneys from some of the top law firms in the country or negotiating multi-million dollar project contracts with In-house Counsel representing Fortune 500 companies, all to ensure that my company gets the best contract terms possible. Ask anyone who knows me, I love to negotiate! (see footnote 1)

But this contract was different. Sure I had researched International Adoption for several weeks, but I was very naive about the whole process. It's almost like I believed the adoption agency was the gate-keeper to something I wanted more than anything, that our daughter was waiting for us behind this contractual door. I was afraid to rock the boat. I didn't want us to be rejected, prevented from adopting the little girl we dreamed of for over ten years. Was that a rational thought process? Not at all! But even though I never said those words out loud, the feeling was very real.

Maybe it's because I spoke with a few agencies before deciding on one, but not nearly enough. The first agency we contacted told us that we ONLY qualified for one country because of our age and having too many children at home already. They said that to be considered for any other country we would have to adopt special needs children or wait up to 2 years. They also thought we were crazy for any considering traveling with our bio kids. (See footnote 2) Needless to say. I was pretty bummed after that meeting.

The second agency said we qualified for Russia and that it wouldn't be a problem to travel with bio kids, but then they tried to steer us toward children older than we wanted. Keeping the birth order of our boys is very important to us so I kept looking.

At that time, no agencies had received the Russian re-accreditation and the ones we spoke with all said the wait for a toddler girl would be 12 months. I didn't know there were other agencies out there who were (and still are) consistently getting referrals in half that time. Faced with so many unknowns, we picked a large, well established, agency who worked in multiple regions of Russia, had placed 100s of children from Russian, did not require us to travel with large sums of cash, who was very responsive to our requests for information and promptly returned phone calls. These are all very important qualities to look for in an agency. There was just one thing missing, a-c-c-r-e-d-i-t-a-t-i-o-n, but, hey nobody else had it either. I was honored an agency would want us as a client. What was the big deal?

The big deal was that, due to no fault of their own, the agency we paid $700 (just to sign a contract with) still has not been re-accredited. So instead of the one year time frame start to finish we were originally told back in April 2007, now their website shows the wait time for girl referrals is 2+ years from the time the dossier is submitted! That would put us at 2 1/2 years start to finish. Not exactly what we bargained for.

After doing a little more research (and reading lots of posts from both yahoo groups and on the FRUA board) I have discovered other reputable agencies that are able to get referrals in 0-6 months from dossier submittal. Some are re-accredited, while others are working independently in regions where that is allowed. We ended up switching to one that meets all of our needs. They have no issues with our age, the number of bio kids at home, or that we want to take our bio kids with us on the 2nd trip, and we won't have to travel into a foreign country with bundles of cash strapped to our bodies. Most importantly for us, they received their re-accreditation certificate in July 2007 and there is practically no wait time for referrals.

Now, back to that first contract we signed. If I had taken my wise husband's advice and requested clauses that said "re-accreditation or your money back" and "the home study belongs to you once you pay for it and you can continue to use if you have to switch agencies because of accreditation delays", we wouldn't have lost $700 and had to pay $500 to have another agency update our homestudy. It's not our former agencies' fault that we didn't negotiate the contract. I'm sure they, along with every other agency, just expect people to sign it as-is. Maybe I'm wrong, but I think most people don't even know it's negotiable. No, any fault here lies squarely within my own insecurities. This post is not about the money. Honestly, we lost very little compared to many adoptive families who have changed agencies further along in the process than we were. Nor is it about letting my husband have a rare "I told you so" moment.

My point is ...

If you are a Propestive Adoptive Parent (PAP), don't lose sight of the fact that adoption agencies are businesses. They want your business. You are the customer. It is in the agencies' best interest to approve your application and enter into an agreement obligating you to pay a substantial amount of money to them. Yes, most are non-profit, but that doesn't mean they don't compete with other agencies for your business. This is not a slam against adoption agencies. They do so much good work and most have excellent charities providing humanitarian aid for orphans around the world. I'm only saying don't be intimidated by the contracting process. It's like that old saying "good fences make good neighbors", well, "good contracts, make good working relationships".

Our agency's director wrote in her application cover letter to me, "You may already feel a sense of anticipation and commitment to a child who is not known to you. Those feelings represent the beginning of the very real bond of love." Boy, she really nailed it! But this time around, I took a deep breath, picked up the phone, and called our agency to discuss a few items in the contract terms.

If anyone reading this blog is just starting the international adoption process or if you are are thinking about changing agencies, you probably already know to do lots of research before before making a financial commitment. You know to make sure whoever you chose to facilitate your adoption is a good fit for your family. Adoption agencies are not created equal and just as families have different dynamics and things that are important to them, so too do agencies.

I want to remind PAPs that it is equally important to know that you must take the time to actually read the contract, fee schedule, and any policy and procedures to which you will be bound. Do not hesitate to question the terms and conditions and request reasonable revisions. If you are not comfortable doing that, hire an attorney to review it for you. A couple of $100 for legal review up front, could end up saving you thousands down the road.

Just remember, once you get the boring contract out of way, then the real fun begins ..... chasing paperwork!!!


Footnote 1: One of Martin's favorite jokes indirectly aimed at me is "What is the difference between a female attorney and a terrorist? You can negotiate with a terrorist"
Ha, Ha, that's just because he never wins any of our little debates.


Footnote 2: Yes, I am aware of all the challenges of traveling with so many kids. I know it will be more expensive. I know that Russian cars are smaller and that we'll need another driver and larger accommodations. I know that we'll need to take another adult with us to watch the kids while Martin and I are in court. I understand that our newly adoptive child will require lots of extra attention. I will be sensitive to the fact that some Russian officials feel that since we are adopting one of "their" children, our entire focus should be on her. I realize that this may be the only time in her life when she would have us all to herself, but come on, my 2nd, 3rd and 4th sons never had three weeks alone with mom and dad and they are just fine.

I really don't need to be lectured by an adoption agency. The importance of having our boys fully involved in their sister's adoption and the opportunity for them to learn about and experience her birth culture first hand far outweigh any downside. We already travel a lot with our kids. We have talked to many families who have been there, done that and wouldn't have had it any other way. We've made our decision. I may just have to agree to disagree with some people on the FRUA (For Russian and Ukraine Adoptions) Board, but I want an agency that will support my decision and work out the extra details with me!