Reaching higher management

[4eaafc03]

I am not sure this subject belongs here, but I have no doubt I'll be told if it doesn't.

I had a dispute with a Freelancer entity, filed an Arbitration against them, won and was awarded the maximum possible under Upwork rules. The Freelancer has yet to pay, though the Arbitration Award specified payment be made by November 4th.

The dispute has been assigned to a Upwork Mediation Team Lead. Previously we were working with a Upwork Mediation Team member.

I have encountered what seems to be an insurmountable communications problem with the Upwork Mediation Team Lead.

I keep asking about two issues which the Upwork Mediation Team Lead simply doesn't answer.

As a result, I am seeking a way, if possible, to escalate my issue to her superiors or higher management in general.

The first issue is that there are two named entities in my Arbitration Initial Statement: the corporation (agency) and its "business manager". My complaint is against both of them and there is nothing indicating that the Award doesn't apply to both.

I am told by the Upwork Mediation Team Lead that limitations have been applied to the "business manager", but the Upwork Mediation Team Lead has so far refused to tell me if limitations have been applied to the corporation. Upwork claims to strictly adhere to the terms on an Arbitration Award. If it failed to apply limitations to the corporation named in the Arbitration, Upwork is violating the its own terms of service. My share of the Arbitration cost was $291. I entered into the Arbitration in good faith, thinking that all parties would adhere to the Arbitrator's findings. If Upwork applies limitations only to one of two parties, then there is no incentive for either to pay me what I have been awarded and Upwork has not followed its own stated policies.

That's the first reason I would like to find a way to reach the Upwork Mediation Team Lead's superior or someone in Upwork management who can investigate this situation and hopefully resolve it.

The second issue is one arising from the Arbitration. The dispute with the Freelancer(s) is somewhat complex and could not be fully pleaded in the 1,500 word limit of the Initial Statement, so I stated that I would be seeking permission to file additional materials, which is permitted under Arbitration rules - if the Arbitrator permits it. In this case, the Arbitrator did not since I had pled sufficient facts to allow him to rule in my favor. So even though I won, not all the issues were settled.

So the second thing I have been seeking from the Upwork Mediation Team Lead are directions on how to file another Arbitration, this time seeking posession of the intellectual property at the heart of the dispute.

I have asked this question repeatedly both of the Upwork Mediation Team Lead and her predecessor and have not received an answer. I apparently can't file an Arbtration without Upwork's consent.

Therefore I can't launch an action to gain possession of the intellectual property I have paid for and was guaranteed ownership of in the contract with the Freelancer. (My Award was for only part of what I had paid the Freelancer.)

So if Upwork won't respond on this issue, I am stuck. I can't recover the intellectual property that the Freelancer was paid to develop.

So again, I am looking for a way to contact the Upwork Mediation Team Lead's superior or someone in Upwork management to resolve this situation.

Constructive assistance will be appreciated.

Jerry

[g_vasilevski]

Hi Jerry,

First of all, I`m sorry to hear about the bad experience you`ve had and the inconvenience this has caused you.
Regarding your dispute, I would like to clarify that your dispute agent may take up to 3 business days to follow up directly on your ticket. I`ve also escalated your concern to our team and your agent will answer your questions as soon as possible directly on your dispute.

If there's anything else I can assist you with, or answer any questions, feel free to follow up. Thank you.

[4eaafc03]

Goran:

Thank you for your prompt and helpful response.

I had not known or had forgotten that replies might take 3 business days. Thank you for reminding me.

Since my original post, the situation has deteriorated with Freelancer(s) stating again that they will pay the Arbitrator's Award only if I provide them with my banking information, which for obvious reasons I will not provide. Further, they are claiming I owe them money on what was our contract, which is ridiculous since I filed the Arbitration because they had failed to dleiver (and other reasons). They made no counterclaim for money owed them and I prevailed in the Arbitration and was granted the maximum possible Award. They are also demanding that I release them from all other claims, including the one I am seeking directions from Upwork on how to proceed in filing another Arbitration.

My fear now, frankly, is that Upwork will ban me because this issue has become far more complex than it should have been and is consuming a lot of time, far in excess of the fees Upwork earned on the payments made. All I've been doing is playing by Upwork's rules for settling disputes.

Jerry

[g_vasilevski]

Hi Jerry,

I understand your concern about this and I would like to confirm that I`ve already escalated your questions and concerns to our team. Once again I would like to assure you that our dispute team will continue assisting you directly on your dispute.

Unfortunately at the moment, we can't discuss the details further here since private details are involved. If you have any questions where private details are involved, feel free to reach out to me via PM (click on my name). Thank you for your patience.

[4eaafc03]

I am having a difficult time resolving a dispute with Freelancers.

There is a provision in my agreement with them that gives me full ownership of all the intellectual property associated with the project. There are no conditions of any kind attached to this contract provision. The Freelancers refuse to abide by this provision which they wrote into the contract.

The contract provision was written into the contract by the Freelancers, so Upwork's Optional Service Contract Terms don't apply.

A very competent Upwork Mediation Team Lead is handling the issue, but I don't think they fully understand the legal issues involved here. In short, in American contract law, ambiguities are always resolved against the drafter of the contract.

I want to get an Upwork lawyer or someone familiar with American law to review my agreement with the Freelancers and confirm my interpretation of the agreement to the Upwork Mediation Team Lead.

Otherwise, they are saying they will close the case if and when the Freelancers pay the amount awarded to me in a previous arbitration.

Does Upwork have an Ombudsman or higher level department to resolve difficult issues such as this? Or should I be writing people like Hayden Brown, President and CEO, and Sam Bright, Chief Product and Experience Officer and let my problem filter down from there?

As I said, I think the Upwork Mediation Team Lead handling this is competent, but feel the subtleties of the legal question might not be fully understood by them.

Any practical guidance will be greatly appreciated.

Jerry 

[NikolaS]

Hi Jerry,

Thank you for reaching out to us. I would like to let you know that our team of specialists is taking a close look and will consider all the aspects of the case before following up with you on your support ticket with an update.

Thank you,

[petra_r]

You would have to independently engage (and pay for) your own lawyer to do this.

The Upwork mediator ultimately can't make a decision anyway, (only arbitration could, if the dispute is eligible for arbitration) and Upwork don't get involved with contract terms clients and freelancers agree on beyond Upwork's. Only their own terms of service or optional contract terms.

[0823fa8c]

Hi Jerry,

Not that I want to add to your missery here but to manage expectations. After few years in UW I have realized that Hirings´, in reality, are not enforced by any contract of any type if they are in a different Country.

Sadly and beign realistic, unless you are willign to spend thousunds of dollars in legal international actions that could lead nowhere you should think in plan B.

Sorry to hear yoru experience I had a very similar back in time.

[prestonhunter]

Juan:

Well said. Excellent points.

As a practical matter, I think any client would be very unwise to think that they will have "legal recourse" outside of the Upwork system. Even if the client and freelancer reside in the same country, it would be unwise for a client to count on there being external recourse.

I don't think you need to characterize this as "sad", however. The Upwork system itself has the tools that clients need to manage hire and manage freelancers. There is no need to go "outside."

The problem is not that the tools don't exist. The problems we see when clients don't know how to use the tools. This IS a real problem. Sometimes the problems we see stem from a client's unfamiliarity with the Upwork platform itself. Sometimes the problems we see stem from a client's unfamiliarity with "hiring" and "freelancing" in general.

Essentially: What happens on Upwork, stays in Upwork.

This is good for freelancers, but even better for clients.

Clients have the freedom to end contracts for virtually any reason, or for no reason at all. And there is nothing freelancer's can do about it. Upwork clients don't need to worry about overtime, demographic quotas, holiday pay, medical benefit, workman's comp., payroll taxes, and countless other things that traditional employees may be unable to avoid.

There is a certain purity and honesty to the whole system that I greatly appreciate as a client.

[kinector]

That was a truly wonderful summary of the practicalities, Preston, thank you. 👍