Re: Arbitration

claire b · ‎10-07-2019

Can someone please help with reference to a dispute? The contract has been closed and it appears that we are at stalemates. The money is held in escrow (it's $750 btw). Will Upwork make a non-legally binding decision about where the funds go?

Or do we have to go to arbitration for either party to get the funds? Do Upwork keep the $750 since we can't agree? Please help.

Petra R · ‎10-07-2019

Claire B wrote:
Will Upwork make a non-legally binding decision about where the funds go?

Only a recommendation which is pretty much meaningless.

Claire B wrote:

Or do we have to go to arbitration for either party to get the funds?

If you don't agree with the suggestion, you will be invited to pay for arbitration.

One of 3 things happens then:

You pay for arbitration, the client does not: You get the Escrow funds and your arbitration money back.
You do not pay for arbitration and the client does: The client gets the Escrow funds and their arbitration money back.
You both pay the arbitration fee: The matter moves to arbitration (nobody gets the arbitration fee back)

Claire B wrote:
Do Upwork keep the $750 since we can't agree? Please help.

No, obviously Upwork does not keep the money. It has to go either to you or back to the client.

Petra R · ‎10-07-2019

Noureldin Y wrote:
Petra R wrote:
You both pay the arbitration fee: The matter moves to arbitration (nobody gets the arbitration fee back)

Even after the Upwork take the decision of who deserve the escrow? The one who deserves it won't take the 291$ back?

Upwork does not make a decision. Only recommends.

Arbitration is done via an independent third party and the costs ($ 873) are shared equally between Upwork, the client and the freelancer. Once arbitration is entered, nobody gets the arbitration fee back (it pays for the arbitration...)

claire b · ‎10-07-2019

Thanks for your helpful advice.

So if neither party enters into arbitration then will Upwork distribute the funds according to the recommendation?

Petra R · ‎10-07-2019

Claire B wrote:
Thanks for your helpful advice.

So if neither party enters into arbitration then will Upwork distribute the funds according to the recommendation?

Nope, you get to choose first and the money goes back to the client if you decline to go to arbitration.

For $ 750 and if you are sure you're in the right, I would strongly suggest you confidently declare that you will go for arbitration because that may bluff the client into thinking twice about it.

From what I have seen and have been told, arbitration seems to almost always go in favour of the freelancer (I have no personal experience of it though)

I can only remember the details of two cases where the client won - in one the freelancer was an out and out nutjob and in one clearly the client was right (from what we were told, at least)

Zachary B · ‎04-16-2020

Petra,

Can you please explain the arbitration process? Is it similar to standard arbitration? Will we be communicating directly with the judge/mediator ?

claire b · ‎10-07-2019

Hi Petra,

Thanks again for replying but I'm confused. So, please allow me to rephrase the question...

If Upwork make a recommendation - And no one enters into arbitration - then in that sense - is that both parties agreeing that the money be distributed according to the recommendation?

And therefore, Upwork distribute the money according to the recommendation?

It seems like what you are saying is that one or both of us HAS to enter into arbitration to have the funds ditributed. Please advise.

Petra R · ‎10-07-2019

Claire B wrote:

If Upwork make a recommendation - And no one enters into arbitration - then in that sense - is that both parties agreeing that the money be distributed according to the recommendation?

And therefore, Upwork distribute the money according to the recommendation?

No.

Claire B wrote:

It seems like what you are saying is that one or both of us HAS to enter into arbitration to have the funds ditributed. Please advise.

Not "enter" arbitration. Just pay for it. Arbitration is not entered until all three parties have paid.

If there is no agreement, and one or both of you disagree(s) with the mediator's recommendation, and neither goes for arbitration, the money still goes back to the client.

Upwork will not distribute the funds unless both (!) parties agree to the recommendation.

If you're sure of your case, go for arbitration and hope the client folds at this stage.

claire b · ‎10-07-2019

This uber confusing - So if Upwork decides my friend keep $750 and
obviously the client disagrees (because he has already said he will go
kicking and screaming to the AAA and drag him there - then he can't have it
without going to arbitration, basically.

So he can only receive $460- on this contract.

He cannot have the $750 unless the client agrees to him having it?

Correct?

And also because the contract is closed to get any agreement from him it
would involve doing more work for him - and this would involve opening up a
whole new contract with the certainty of another dreadful review and
aggravation. Will Upwork allow him to do some tidy ups on this to get an
agreement without opening a whole new contract? He won't enter into a new
contract with this "nut job".

Petra R · ‎10-07-2019

Claire B wrote:
This uber confusing - So if Upwork decides

Upwork don't decide. Only arbitration "decides"

Claire B wrote:
Will Upwork allow him to do some tidy ups on this to get an
agreement without opening a whole new contract? He won't enter into a new
contract with this "nut job".

Sure. Upwork does not care about that sort of thing one way or the other. In fact that would be a relatively neat way to sort it out with nobody having to pay for arbitration.

Claire B wrote:

So he can only receive $460- on this contract.

He cannot have the $750 unless the client agrees to him having it?

OR if the client is bluffing about arbitration 😉

But yes, if the client is hell bent on arbitration the choice is arbitration or nothing.

claire b · ‎10-07-2019

Thanks for all your help

claire b · ‎10-13-2019

Regarding a dispute:

How long is it before the dispute specialist (DS) steps in and puts forward a recommendation? By this I mean I was under the impression that the whole thing has to be over in 30 days. So what is the latest point down the line the DS will step in? As obviously once the recommendation is put forward there has to be time for the parties to decide and put up arbitration costs?

Also, can the DS force the freelancer to open a new contract with the client? The DS is saying that the contract is closed so in order to do any more work to get an agreement a new contract must be opened. This seems very out of the ordinary since virtually all disputes by definition are going to have closed contracts. And to get a resolution the freelancer is more than likely going to have to tweak the work or do more work as part of an agreement. As a top-rated freelancer, ONE bad set of feedback can be removed but not TWO. So it seems very unfair that the freelancer is being forced have feedback they cannot remove from an unhappy client. Nor is it going to help to get an agreement - as the freelancer as most freelancers is not going to take on TWO sets of bad feedback. And in which case, by not agreeing to a new contract will this mean the freelancer is viewed unfavorably and have the recommendation ruled against them?

Your advice is valued and appreciated.

Jennifer M · ‎10-13-2019

Claire B wrote:
Regarding a dispute:

How long is it before the dispute specialist (DS) steps in and puts forward a recommendation? By this I mean I was under the impression that the whole thing has to be over in 30 days. So what is the latest point down the line the DS will step in? As obviously once the recommendation is put forward there has to be time for the parties to decide and put up arbitration costs?

Also, can the DS force the freelancer to open a new contract with the client? The DS is saying that the contract is closed so in order to do any more work to get an agreement a new contract must be opened. This seems very out of the ordinary since virtually all disputes by definition are going to have closed contracts. And to get a resolution the freelancer is more than likely going to have to tweak the work or do more work as part of an agreement. As a top-rated freelancer, ONE bad set of feedback can be removed but not TWO. So it seems very unfair that the freelancer is being forced have feedback they cannot remove from an unhappy client. Nor is it going to help to get an agreement - as the freelancer as most freelancers is not going to take on TWO sets of bad feedback. And in which case, by not agreeing to a new contract will this mean the freelancer is viewed unfavorably and have the recommendation ruled against them?

Your advice is valued and appreciated.

I am not sure if there is a set deadline on how long a dispute lasts before arbitration. You can shorten it considerably if you already know what you're willing to do and take and just tell her/him that. I've had it start and finish in 2 weeks and that's including me paying for arbitration and the client disappearing.

For the second question, no they can't force you to do anything you don't want to do.

claire b · ‎10-13-2019

Thanks for the advice. let me rephrase, please. WHY is this DS talking
about NEW contracts? It's totally UNFAIR for the freelancer to pick up TWO
sets of bad feedback on what is essentially ONE contract. Save for the fact
the client has pressed the button and closed the contract. It's a
totally legalistic approach in my opinion. As I say - virtually all
disputes are going to have closed contracts - and it's totally unhelpful
that the DS, in this case, appears to be taking this approach. It's not the
norm. What can be done?

Can the freelancer ask for the DS team to review this particular DS's
unusual approach to mediating disputes?

Jennifer M · ‎10-13-2019

Claire B wrote:
Thanks for the advice. let me rephrase, please. WHY is this DS talking
about NEW contracts? It's totally UNFAIR for the freelancer to pick up TWO
sets of bad feedback on what is essentially ONE contract. Save for the fact
the client has pressed the button and closed the contract. It's a
totally legalistic approach in my opinion. As I say - virtually all
disputes are going to have closed contracts - and it's totally unhelpful
that the DS, in this case, appears to be taking this approach. It's not the
norm. What can be done?

Can the freelancer ask for the DS team to review this particular DS's
unusual approach to mediating disputes?

They're just making a suggestion for you two to come to some kind of agreement. And I guess you can complain to a manager (not sure how you would do that), but the mediator doesn't sound to be doing anything out of the norm. It's not unusual. They always suggest the freelancer do something to get the client to accept the work.

Tonya P · ‎10-13-2019

Is the client asking for a refund on paid work or refusing to pay for work submitted?

If you are willing to make revisions to existing content then no contract is necessary for that to happen.

If you are only willing to make revisions if you are paid for your time, then the client can pay you the requested amount in the form of a bonus.

There are no circumstances in which you need to agree to a second contract with the client.

Tbh, I don't know what happens in everyone's dispute processes. But from some of the reports I've seen here in the forums, I would be very cautious when considering anything from the DS as advice.

Present your desired outcomes in a list and decide (but don't disclose) whether you are willing to take the matter to arbitration or not.

Jennifer M · ‎10-13-2019

Tonya P wrote:
Is the client asking for a refund on paid work or refusing to pay for work submitted?

If you are willing to make revisions to existing content then no contract is necessary for that to happen.
If you are only willing to make revisions if you are paid for your time, then the client can pay you the requested amount in the form of a bonus.
There are no circumstances in which you need to agree to a second contract with the client.

Tbh, I don't know what happens in everyone's dispute processes. But from some of the reports I've seen here in the forums, I would be very cautious when considering anything from the DS as advice.

Present your desired outcomes in a list and decide (but don't disclose) whether you are willing to take the matter to arbitration or not.

What happens is the dispute person will ask what you will take as a settlement. The client always offers like $50, so the dispute person will come back and suggest you do something to make them happy like do more revisions.

I'm pretty sure at least for writing it's scripted suggestions. First go for a settlement and then try to get the freelancer to do something to make the client happy. Then if nobody agrees the freelancer is asked to pay for arbitration.

claire b · ‎10-14-2019

Thanks for your advice!!

No I agree -

The freelancer pressed the please pay button after having submitted 60
hours work with ever changing preferences/briefs/etc. It was agreed that
the work would take 4 days max. I just want to make it clear that this is
a talented design professional and brand consultant that has earned 80K in
the first 2 years on Upwork. The client kept pressing the button back and
it got silly so the freelancer asked for a dispute - EXPECTING that the DS
would put a stop to this nonsense. The freelancers rate is $60 - like I
say he's a guy with 30 years experience in top design agencies - and after
60 hours so the rate is now less than the national minimum wage - he has
still offered to do some more work but a maximum 18 hours on a contract
that is already 3 times over budget. But these are REVISIONS

So the client initially refused to pay for the work - then he asked for a
full refund - now he has asked for a partial refund- The client himself has
allocated $400 to the logo part of the work and says scrap that I won't
bother paying for that - and you finish off the catalogue for $350.

And all the time this new contract and bad feedback is being held like a
gun to his head -by an angry client who has already threatened him with bad
feedback.

But annoying the DS doesn't seem smart, either. Who makes the decision?
Just her? Can he ask for a manager to get involved?

Petra R · ‎10-14-2019

Claire B wrote:

So the client initially refused to pay for the work - then he asked for a
full refund - now he has asked for a partial refund- The client himself has
allocated $400 to the logo part of the work and says scrap that I won't
bother paying for that - and you finish off the catalogue for $350.

And all the time this new contract and bad feedback is being held like a
gun to his head -by an angry client who has already threatened him with bad
feedback.

As the contract has been closed (according to you) the feedback has already been left. This ship has sailed and nothing that comes afterwards will change the feedback or its impact.

Claire B wrote:
But annoying the DS doesn't seem smart, either. Who makes the decision?
Just her? Can he ask for a manager to get involved?

Yet again: The DS makes no decisions at all, Only suggestions (we went over this in your previous threads)

The hours worked on a fixed rate contract are of no consequence.

So the contract was $ 750 for the logo and the catalogue?

How much is in Escrow? 750 for the whole lot?

How much work was done? The logo only or the catalogue as well?

If your friend wants to shortcut the process, just tell him to reject all suggestions and push for arbitration.

claire b · ‎10-14-2019

I did not mean to say the DS does not seem smart - that it is a complete
typo - and not my opinion.

I am asking if the individual DS makes the recommendation that goes
forward to arbitration. as opposed to a team of DS.

All the work was done - it's just that the client kept scrapping what he
originally wanted and asking for endless changes on a job that they both
agreed should take 4 days and should be finished in 8 days and that was
stipulated prior to the contact. And on the contract. Should have been
finished on Sept 15th - freelancer started the dispute after 60 hours
spent on the job and on Sep 26th.

He can use his top-rated perk to remove feedback ONCE for this contract but
obviously not TWICE

Avery O · ‎10-13-2019

Hi Claire,

I checked your account but do not see any active dispute ticket. Is this related to your post last week about your friend who currently has a mediation ticket? I would definitely advise that if your friend has questions, or need clarification about their issue, they can reach out to us directly, or the Customer Support Team, and we will be happy to assist them with their concern. It would be best to work with the actual user who has the issue so that we can review the case thoroughly, and assist them from their. Please encourage your friend to reach out to us. Thank you!

~ Avery

claire b · ‎10-14-2019

Thanks for your help. He is close to giving the 60 hours work
away actually. He just doesn't have time for these kinds of things. Not
least, he was expecting more support from the DS. And the whole thing makes
him so stressed that he can't then concentrate on work that does get him
far more than $60 per hour. So I am just researching for him.

I have told him he should reach out, but it's good that I have collated
some generic info for him. Thanks again for all your help - it's been very
useful.

claire b · ‎10-15-2019

Hi there,

Can someone who has been through arbitration with Upwork (or knows about it) give me some details of the process and their experience, please?

Thanks I greatly appreciate your advice.

Nichola L · ‎10-15-2019

Claire B wrote:
Hi there,

Can someone who has been through arbitration with Upwork (or knows about it) give me some details of the process and their experience, please?

Thanks I greatly appreciate your advice.

_______________________

Are you asking this for you or for your friend?

https://support.upwork.com/hc/en-us/articles/211068528-Dispute-Non-Release-of-a-Milestone-Payment

This is how arbitration works and it only applies to fixed-price jobs not hourly.

https://www.upwork.com/legal#fp articles 6 through to 9

Fabio D · ‎10-15-2019

terrible. Just try to find another way, it's not worth it, unless you're losing a really hefty sum.