Arbitration the client side

[540ceea2]

Hi everyone,

I sincerely appreciate your valuable time and consideration in reviewing my case. Your insights and assistance on this matter would be of great help.

I have successfully completed four projects with different freelancers in the past. However, I am currently facing significant challenges with my current freelancer, and I am reaching out for your guidance.

Some background:
In my quest for a professional freelancer or agency to manage my ongoing project, I took meticulous steps. Before commencing the freelancer's tasks, I ensured the completion of a nondisclosure agreement (NDA) and a customized contract. This comprehensive contract details the scope of work, the agreed-upon compensation, and the scheduled delivery date. Additionally, the contract includes a provision stipulating a monetary penalty of $50 per day for any delay beyond the agreed timeframe.

Unfortunately, the freelancer fell short of completing 20% of the project within the agreed-upon time. They sought approval for initial milestones, citing the need to compensate their employees. In the absence of approval, they communicated their intention to delay the project until securing funds from an alternative client. Despite these circumstances, I accommodated their request for assistance. However, minimal progress was made in two months, leading me to terminate the freelancer and initiate a dispute.

The freelancer requested another opportunity, proposing a $500 penalty fee. Despite my reservations, I granted them a final chance and opened an additional project.

The freelancer committed to completing the work within a month. However, a month later, they cited financial constraints, and once again, I agreed to release payment. Now, two months after my leniency, I find the situation untenable, prompting me to initiate a new dispute and demand a refund.

The arbitration questions:

1. Arbitration Authority and Freelance Fees: Can the arbitration entity exercise the authority to collect the freelance fees amounting to $50 for each day of delay, as specified in the contract both parties signed?
   
   
2. Refund Authority: Does the arbitration possess the jurisdiction to issue a full refund for the entirety of the funds I have previously transferred to the freelancer?
   
   In the event of a successful arbitration process, will the freelancer be held responsible for covering my arbitration fees?
   
   
3. Enforcing Payment from Freelancer: What mechanisms does the arbitration employ to compel the freelancer to disburse the owed funds to me?
   
   I am keen on understanding the process and authority through which the arbitration can demand payment from the freelancer and ensure a fair resolution.
   
   thanks in advance,

Shay

[spectralua]

1. No. Only amount paid.

2. It is possible. No, fee is unrefundable.

3. Upwork will force FL but not guaranteed. FL able to abandone account and ignore.

[wlyonsatl]

It is my understanding as a non-lawyer that the arbitrator assigned to your case cannot collect anything other than information from you or the freelancer.

Upwork provides payment (for the arbitrator's services only) on behalf of you and the freelancer, who have both already paid your portion of the arbitration fee to Upwork.

After reviewing all of the information you, the freelancer and Upwork from him/her, the arbitrator makes a decision about who owes what to whom. The arbitrator cannot enforce their decision; whoever "wins" arbitration has to take the arbitrator's ruling to a "court of competent jurisdiction" in the winner's jurisdiction to enforce it.

The arbitrator is not as concerned as a judge and jury would be with the specifics of the law that might  apply to your case. The arbitrator's goal is to come to a "fair" solution, which may be (very) different than a judge and jury would come to.

When you present your side of the dispute to the arbitrator be sure to include documentation in regards to all monies you believe are owed to you in a timely way. Depending on the amount of money in dispute, the freelancer may not even agree to arbitration. Under Upwork's rules that would mean you would "win" your dispute by behalf.

Then it would be up to you to take the freelancer to court go through all the rigamarole of taking someone to court. And even if you get a summary judgment because the freelancer doesn't partcipate in your arbitration you may not be able to collect any money from the freelancer. If the freelancer lives in a different country you are unlikely to be able to collect any money without incurrent very large legal fees, if a all.

And regardless of what channel of judgment and enforcement you use the only money Upwork could provide you would be whatever money (if any) is already in Upwork escrow.

I don't think you should expect Upwork to play any other role in the enforcement of either an arbitration decision or a legal judgment. That will all be up to you.

Before you spend much additional time or money on this you should no doubt discuss all of the above for confirmation and additional explanation by a legal professional of your choice.  The wisest route might be to just walk away and begin work with a dependable freelancer who can deliver what you need.

Good luck!