Dispute assistant violated official Upwrok policy

[vadym_burla]

Hi, I'm a freelancer and in the middle of a dispute with a client. All the ado is about $120.
I strongly believe that the dispute assistant violated Upwork policy Section 6.1 Paragraph 4. Lack of Participation Lack of Participation: Client and Freelancer must respond to the Notice of Escrow Dispute within 5 calendar days. If one party does not timely respond to the Notice of Escrow Dispute, Client and Freelancer agree that the lack of timely response acts as an irrevocable authorization and instruction to Upwork Escrow to release the funds in Escrow from the non-responding party to the responding party.
     It can be found on the official Upwrok page here: https://www.upwork.com/legal#fp
     To cut it short in my case when the client failed to reply to the group discussion within 5 Calendar days (as specified in the policy), the agent violated the policy and gave the client two additional days to reply. If she hadn't done that I would have been automatically transferred the amount ($120) the disputed was created around. Now upwork dispute agent is going to pass this dispute to Arbitration. Btw in that case me, my client and upwrok will be asked to pay a mandatory fee -  $291 EACH for the service of the Arbitration. Funny thing is that even if me and the client refuse to pay the fee the money in escrow will automatically be refunded to the client and I'll be left with nothing but wasted time, now how is that fair UPWORK???

Question: Is there any way how I can escalate this issue to the upper management as I think that is an outrageous attitute towards a freelancer?!

[petra_r · Accepted solution]

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Vadym B wrote:

Now upwork dispute agent is going to pass this dispute to Arbitration. Btw in that case me, my client and upwrok will be asked to pay a mandatory fee -  $291 EACH for the service of the Arbitration.

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If you pay the arbitration fee, chances of the client paying it are near 0 and you would get both your arbitration fee back AND the money in escrow. That's why the person who pays the arbitration fee first gets to call the other party's bluff. Yes, it's a little bit of a gamble, but the person who pays the arbitration fee first leaves the other party with the choice between a smaller loss and a bigger loss. In virtually all cases, that person will literally "cut their losses" and choose the smaller loss, as there is simply no point in throwing good money after bad.

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Vadym B wrote:

     To cut it short in my case when the client failed to reply to the group discussion within 5 Calendar days (as specified in the policy), the agent violated the policy and gave the client two additional days to reply.
Question: Is there any way how I can escalate this issue to the upper management as I think that is an outrageous attitute towards a freelancer?!

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I agree that it is a violation of the terms of service and have never understood why they do it, especially whent the terms of service are so perfectly clear. 5 calendar days. That's it. Unfortunately Upwork seem to do this frequently considering how the topic pops up from time to time. There isn't really much recourse.

edited to remove several instances of the wrong term which Jennifer kindly pointed out

[vadym_burla]

thanks for your response! 
let me quote the dispute assistant : 'I would like to help you both avoid arbitration as there is a non-refundable fee of $875. This cost is split equally three-ways between the client, freelancer and Upwork at $291 each.' 
As you can see the fee is Non-refundable, or am I not getting some details? Please clarify 🙂

[petra_r]

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Vadym B wrote:

As you can see the fee is Non-refundable, or am I not getting some details? Please clarify 🙂

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It absolutely *is* refundable if one party doesn't pay because then arbitration does not take place. It becomes non-refundable once all parties have paid. The dispute assistant is playing their own bluffing game to persuade you NOT to go to arbitration by not mentioning vital information, hoping that you won't find it out yourself.

I'd suggest you call their bluff and insist on arbitration rather than accept some half-baked compromise that would end up with you not getting paid what you're due.

Again, there would be a small risk of the client being nuts and choosing the bigger loss over the smaller loss. But it is a small risk.

[vadym_burla]

Okay, let's imagine I was first who paid the fee.  But how will the client know that I did it before him? 

[petra_r]

You tell him in the dispute thread. Usually the freelancer is asked first anyway. Even a firm declaration that you fully intend to do so may do the trick.

[jr-translation]

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Petra R wrote:

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Vadym B wrote:

Now upwork dispute agent is going to pass this dispute to Arbitration. Btw in that case me, my client and upwrok will be asked to pay a mandatory fee -  $291 EACH for the service of the Arbitration.

---

If you pay the escrow arbitration fee, chances of the client paying it are near 0 and you would get both your escrow arbitration fee back AND the money in escrow. That's why the person who pays the escrow arbitration fee first gets to call the other party's bluff. Yes, it's a little bit of a gamble, but the person who pays the escrow first leaves the other party with the choice between a smaller loss and a bigger loss. In virtually all cases, that person will literally "cut their losses" and choose the smaller loss, as there is simply no point in throwing good money after bad.

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Vadym B wrote:

     To cut it short in my case when the client failed to reply to the group discussion within 5 Calendar days (as specified in the policy), the agent violated the policy and gave the client two additional days to reply.
Question: Is there any way how I can escalate this issue to the upper management as I think that is an outrageous attitute towards a freelancer?!

---

I agree that it is a violation of the terms of service and have never understood why they do it, especially whent the terms of service are so perfectly clear. 5 calendar days. That's it. Unfortunately Upwork seem to do this frequently considering how the topic pops up from time to time. There isn't really much recourse.

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As much as I hate Upwork using our fees to pay clients or freelancers if something goes South, they should pay $120 to the freelancer instead of gambler $291. The difference should be spend on some mandatory training.