Arbitration fee missed deadline.. Ignored by mediator... Again

[rickyvic2]

I have been given a 5 business days deadline to pay arbitration fee.
Mediator did everything by the book except ignored that the client missed the deadline to pay the fee. The mediator clearly stated that if payment is not made within the deadline, escrow releases funds to freelancer.

I am not sure why this happened.... Again if you look at other topics.

[tlsanders]

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Riccardo V wrote:
I have been given a 5 business days deadline to pay arbitration fee.
Mediator did everything by the book except ignored that the client missed the deadline to pay the fee. The mediator clearly stated that if payment is not made within the deadline, escrow releases funds to freelancer.

I am not sure why this happened.... Again if you look at other topics.

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You only get the money if you pay and the client does not. Otherwise, this term applies:

• If Client and Freelancer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Upwork will close the Dispute.

[rickyvic2]

Maybe I did not make myself clear: I freelancer paid the fee on time,
client failed to do so within the deadline, funds are in escrow and AAA
process started.
This is a breach of contract as client failed to meet the deadline for
payment.

[tlsanders]

I see. When you said "I have been given five days to pay..." I thought you meant that was the stage you were at now.

How long ago did the client's time to pay expire?

[rickyvic2]

One day late, this is a legal process there are no second deadlines. The
mediator needs to be fair and respect the contractual terms of the escrow
agreement.
There is no discretion in the decision process especially once parameters
have been established

[kochubei_valeria]

Hi Riccardo and others,

I checked the case and do not see that any deadlines communicated by the Mediation Specialist were missed. The client was given 5 business days until August 2nd to pay their arbitration fee and they paid before August 2nd. Riccardo, please note that these are business days so weekends don't count. Please, refer to Fixed Price Escrow Instructions here:

"If the Arbitration Plaintiff makes the Arbitration Payment, Upwork will contact the other party (“Arbitration Respondent”) to request that the Arbitration Respondent pay its portion of the Arbitration fees as well. If the Arbitration Respondent fails to make the Arbitration Payment and submit to such Arbitration within 5 business days after the First Arbitration Notice, Upwork will suspend the Arbitration Respondent’s account, and both parties will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the funds sought by the Arbitration Plaintiff in the demand for Arbitration to the Arbitration Plaintiff, to the extent such funds remain in the Fixed-Price Escrow Account. "

[lysis10]

They always miss the business days thing. Details details.

[rickyvic2]

Hi Valeria,

it was specifically stated "before friday", Friday end of day payment was executed.
Unless one says before Friday end of day.

I received no answer from the moderator when I ask the question where are my funds.
Clearly something was wrong.

[AveryO]

Hi Riccardo, 

I apologise for the delay. I have followed up your ticket with the team handling your case so that they can get back to you and update you on the same ticket thread the soonest. 

[petra_r]

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Riccardo V wrote:
Maybe I did not make myself clear: I freelancer paid the fee on time,
client failed to do so within the deadline, funds are in escrow and AAA
process started.

---

So the client did pay the fee, but was given additional time to do so, correct?

[rickyvic2]

Yes, it was paid late after the deadline.

[tlsanders]

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Riccardo V wrote:
Yes, it was paid late after the deadline.

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This is not the first time we've seen this reported in the forum. At first glance, without having looked closely at the TOS language, it sounds like a breach of contract on Upwork's part to me. Were I in this situation, I would consult an attorney with expertise in contract law.

[lysis10]

Yeah, they give the client a few more days. It sucks cuz you know we would not be given that slack and then we'd get our accounts suspended. meh

But it's a good sign if the client is already this late. The mediator gives them 2 more days I think and it's business days so weekends don't count.

[wendy_writes]

Then it should be stated in the ToS. 

IMO, this is nonsense ....

[mwiggenhorn]

According to the quote provided, it does state 5 business days...

[lysis10]

Is it not in the ToS? I don't know. I know that they do specify business days in the email that they send. They also always say that they cannot make a binding decision in every email that they send too.

IME they always give the client extra time. I know Valeria is careful with her words because she has to, but I've never had them just say "ok, client late you win." They always give the client a couple extra days and it's happened to me several times. Nothing you can do about it but rage. In my last dispute, I shoulda just auto-won but she was given extra time to set up a phone call for the mediation process. I think clients generally think that because they are clients that they can blow off the whole process without realizing that the freelancer wins if they do this.

I tell ya, though, hourly is the way to go on Upwork. So many fewer headaches.

[rickyvic2]

I agree I am only doing hourly from now on unless it is someone I trust.
I took a risk with this client he was up to something from the beginning but I thought I was protected not like this.

I could understand giving clients with high spending benefits, I do. I don't understand giving extra time to someone with no feedback and a very rude and illogical attitude an advantage over a high earner that clearly attracts clients to their platform.
A mediation should have at least clarified that.

So it is a matter of incentives given to employees during the mediation.

I am deeply sorry having investing significant time using this company.

[petra_r]

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Wendy C wrote:

Then it should be stated in the ToS. 

IMO, this is nonsense ....

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The fact that it is 5 business days is in the ToS, and that is what happened here.

[AveryO]

Hi Wendy, 

This is noted in Section 6.3 NON-BINDING ASSISTANCE of the Fixed-Price Escrow Instructions. 

[JoanneP]

Hi Riccardo,

I see that you already chatted with our team regarding your concern. The agent has already followed up with the team that's handling your case and they will reach out to you directly to provide further assistance. Thank you.

[wendy_writes]

Joanne Marie, as Tiffany noted this is not the first time this issue has been raised in the forums. Without sharing details specific to OP's case - we would all like to know what the he// the deal is.

If FL has paid arbitration fee on time and client has not ... the money in escrow should be released to FLer according to Upwork's ToS.

Correct?

[robbie-b]

Hmm. I'm only posting to get the update notifications. I'd have thought the Escrow funds would've been released when the client failed to pay their dues on time. 

[colettelewis]

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Wendy C wrote:

Joanne Marie, as Tiffany noted this is not the first time this issue has been raised in the forums. Without sharing details specific to OP's case - we would all like to know what the he// the deal is.

If FL has paid arbitration fee on time and client has not ... the money in escrow should be released to FLer according to Upwork's ToS.

Correct?

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___________________

Would it be possible for Upwork to give a transparent answer to this question? 

[petra_r]

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Nichola L wrote:

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Wendy wrote: If FL has paid arbitration fee on time and client has not ... the money in escrow should be released to FLer according to Upwork's ToS.

Correct?

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___________________

Would it be possible for Upwork to give a transparent answer to this question? 

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I remember this came up before and Valeria confirmed that in certain cases a party may be given extra time under some fine print rule

[dzadza]

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Wendy C wrote:

Joanne Marie, as Tiffany noted this is not the first time this issue has been raised in the forums. Without sharing details specific to OP's case - we would all like to know what the he// the deal is.

If FL has paid arbitration fee on time and client has not ... the money in escrow should be released to FLer according to Upwork's ToS.

Correct?

---

well, yes, unless...there's a super small print in there somewhere no one noticed...

[rickyvic2]

this is the answer from the mediator.

....

**Edited for Community Guidelines**

So the deadline was met but the mediator did not notify the group's message because of privacy and now I cannot see any proof of payment made.

The willingness to pay is not an executed payment.

The 5 business days were stated but also specified as "before friday" (friday aug 2nd), friday I had no notifications of payment made, things moved quickly once I ask to release the escrow funds in my favour.

The bad thing is that we cannot have any proof of what mediators do and it is all in clients' favour. When we do they invoke clients' privacy.

[g_vasilevski]

Hi Riccardo,

I`m sorry to hear about the bad experience you had with your client and I understand your frustration with this. If you have any additional questions feel free to send them directly to your dispute agent and they will assist you further as soon as possible. Thank you. 

[wendy_writes]

Definition of Mediation from the ABA (American Bar Association)

"Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. The parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for the resolution of the dispute. While courts can mandate that certain cases go to mediation, the process remains "voluntary" in that the parties are not required to come to agreement. The mediator does not have the power to make a decision for the parties, but can help the parties find a resolution that is mutually acceptable. The only people who can resolve the dispute in mediation are the parties themselves. There are a number of different ways that a mediation can proceed. Most mediations start with the parties together in a joint session. The mediator will describe how the process works, will explain the mediator’s role and will help establish ground rules and an agenda for the session. Generally, parties then make opening statements. Some mediators conduct the entire process in a joint session. However, other mediators will move to separate sessions, shuttling back and forth between the parties. If the parties reach an agreement, the mediator may help reduce the agreement to a written contract, which may be enforceable in court."

https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/mediation...

To the best of my understanding this means at least some 3 way communication between client, FLer, and mediator.

[mwiggenhorn]

Wendy, mediation and arbitration are somewhat different.

Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments.

Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute.

The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Compared to traditional trials, arbitration can usually be completed more quickly and is less formal. For example, often the parties do not have to follow state or federal rules of evidence and, in some cases, the arbitrator is not required to apply the governing law.

After the hearing, the arbitrator issues an award. Some awards simply announce the decision (a "bare bones" award), and others give reasons (a "reasoned" award).

The arbitration process may be either binding or non-binding. When arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. When arbitration is non-binding, the arbitrator's award is advisory and can be final only if accepted by the parties.

ABA Resources

ABA Resources

[wendy_writes]

Thanks, Mary.