What rights do I have as freelancer in a mediation?

[searchwiz]

This multi-part question is directed to experienced forum moderators/gurus only (all others please ignore):

1) A client has skipped the 5-day review period to give feedback and then weeks later ended the contract without further ado or discussion about the project deliverables, and before even beginning to engage me in a discussion on the matter.

2) He proceeded to wait until after both the 5-day review period for the work billed, and also after the payment has cleared my bank.

3) One day after all this, he files a request for a refund, saying that he doesn't understand the notes on the time tracker.

4) This is an hourly project. It also contained work that was to be billed as hourly on the tracker (stated in the proposal and project's agreed-upon terms).

5) The only realistic way to provide this word-count content work on the time tracker was via manual time.

6) The dispute terms on UpWork repeatedly state that after the 5-day review period, there are no protections for the client on that post-review-period work (in other words, he can't request a refund on that work after 5 days for any reason, let alone for a real or justifiable one).

7) Since manual hours are not covered under the hourly protection, he COULD have disputed those hours. And with or without justification, get a refund?

The above is how I understand my situation. My question is

A) ...whether or not item #7 above is true (the UpWork site literature does not really clarify this point in enough detail to know)?

B) Is it possible for the client to file a mediation request while requesting a refund (for any reason whatsoever) in order to obtain the refund that is not supposed to be open to him any longer after the 5-day review period AND the dispute periods have BOTH passed?

C) Are there any stated policies before this date that state that the policies regarding such a belated refund request?

D) I was asked to show evidence of the work by the mediator. I did, in the form of a link to a shared folder with everything. I then asked what the mediator else was required of me. That was several days ago. No answer to this question was given to me by the mediator. And apprently this process may take months if I understand the ramifications of the actual process (the question here is all the above).

E) Is it even necessary to show such proof to protect my earned income in this situation? Clearly the 5-day review period passed, the project was ended, not paused, and no attempt was made the client to work through any issue (none of which was clearly stated during the project or the 5 day review period, mind you)...isn't the 5-day review period the original "red line" for refunds?

F) If I need to continue to defend my manual tracker time reported via the tracker even after the 5-day review period and after the period for a dispute have BOTH passed, then isn't it true that there are no rules at all and any freelancer can have his manual time refunded at any time for 30-60+ days after the review period and dispute period have BOTH passed?

*** Note that the mediation process is not completed as yet, and I am not being answered as to my direct private questions to the mediator (more than 3 business days later) about what is left for me to do or defend in this situation. I feel like I'm on trial in a mysterious Kafa novel by an accuser who is very confident of getting his way regardless of justice or the lack thereof. I was told by customer service to simply wait to hear my verdict. I obviously am quite reticent to take on any new projects on UpWork or to continue with existing ones after this experience. I have been top-rated for a very long time, and have been on UpWork since years before the transition from Elance. I had no idea that this sort of thing could even happen given all the review and dispute periods being passed without effort on the part of the client. Now I'm being virtually required to check in once a day (to be sure not to miss any new updates and thus lose my case). If I'm not safe (regarding my freelancer earnings) in this situation, who is? Is this worth the risks freelancing here given that this is happening to me?

[petra_r]

Mark, essentially, the client can dispute up to 30 days and whatever was agreed, any hours that do not comply with the terms of hourly protection, may be refunded to the client. (meaning the hours were tracked rather than manual, you used meaningful (!) memos, had decent activity levels and the screenshots are clearly of the work done for the client)

However, the dispute team will *ONLY* look at the work diary (hours) no more than 30 days before the client asked for dispute assistance.  It sounds like most, if not all of your hours are outside that?

The client can ask for mediation / dispute assistance even if there are no hours that fall in the dispute window, but if you don't WANT to refund anything beyond the 30 day window, just state so clearly and the dispute will eventually close.

Can you give us the following dates please:

Date you last tracked time

Date the client asked for a refund

Date the client asked for dispute mediation

What you wrote above is a bit unclear as far as the timeline is concerned...

As your profile is set to private, presumably it was over 30 days since you were paid, so essentially the dispute has no "teeth" and you can just reject any "non-binding suggestion" if you like.

I am a little puzzled however, about this statement:

---

Mark wrote:

5) The only realistic way to provide this word-count content work on the time tracker was via manual time.

---

I can think of no situation where a wordcount would necessitate manual time unless someone else took care of part of it, which is, of course, not allowed on hourly contracts (even with the client's permission.)

Anyway, here's the (badly written) part of the legal blurb:

7.2 UPWORK DISPUTE ASSISTANCE

Non-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Client to Freelancer. If Client or Freelancer contacts Upwork via support ticket within 30 days of the date of the last payment from Client to Freelancer and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Upwork will attempt to assist Client and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution. Upwork will only review the 30 days of work performed prior to the date a User requests Dispute Assistance.

• The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation.
• If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
• The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
• If Client or Freelancer rejects Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.
• Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Upwork Escrow to make appropriate releases to Client if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.

[searchwiz]

Well, I can definitely think of a reason to use manual time in that situation. 1) It's there for cases when needed, but also 2) as a longtime 20+ year writer, and as in this specific contract, I know well that tracking writing hourly won't account for the word-count basis part of a contract, which he requested specifically I quote separately from hourly time, thus hourly tracking in realtime makes no sense there - it's not hourly, it's word-count. That's what I mean that it's the only way I could honor an agreement on a multi-part hourly contract to charge by word-count for the content portion of the project. I think I've done it this way now and then in the past (no client is going to set up multiple projects when one will do), but sometimes, as just mentioned, it's the only way to have both types of deliverables in one project (word-count content writing on the one hand and phone consulting and competitor intelligence SEO research).

Thanks for the legal snippet. I couldn't find anything on UpWOrk about specifically mediation cases, but I'll peruse this to see if anything there applies specifically to a mediation, which is what we're in now.

As to your other comments, I'll post the dates below:

Sept 16th: Accepted the offer after the client pleaded with me to accept and assured me he understood the project terms in the proposal and reinforced many times verbally in the many (free) phonecalls of consulting he squeezed out of me before project start

Sept 22nd? (this is the weekending date I found in the reports area): Work period had ended.

Sept 26th: Contract ended by client for purely monetary / budgetary reasons onhis part (against my express advice, and without discussing how to satisfy him on the deliverables in question, whatever they were, which was never a stable topic/answer for him)

Sept Friday 27th?: The 5-day work review period is over by now according to my calendar and calculations from the 22nd...

Oct 2: Client requested a refund

Oct 7: Client requested mediation (the notice I received states "Mediation" I believe, and so does the mediation room and the mediator and customer service call it this)

So this appears to be well after the 5-day review period. Plenty of time to tend his project had he cared about following protocol, is it not?

The client just before the refund request at the end claimed not to understand that I charge for phone consulting (for the first time he had ever claimed that), despite it being stated clearly within the proposal terms, and my reminding him several times verbally. He also claimed not to understand the time on the tracker, which I tried to explain on the phone (what I had already noted clearly on the tracked time...). He said he couldn't talk about that. I couldn't force him to hear me out. I saw to reason to copy out the tracker details and write endless messages on something that a simple phone call would have cleared up in seconds. He clearly didn't want to take any time to explain it to him, but just wanted me to understand that he didn't understand the tracker (not a new UpWork client whatsoever, not even close).

My perspective:

This client is simply trying to get out of paying for work done to live the 4-Hour Work Week thug life. I heard him talk about other things he'd gotten for free thus far on this proposed website (in euphemisms) after I'd grudgingly accepted the project and after he stated and assured that would accept my consulting and other charges as stated in the pre-acceptance proposal updates, that he "trusts me" as he continually rolled out new prospective responsibilities on project management, etc. all the while, which I had dutifully included as prospective "add-ons" within the proposal should he decide to use them. I'm also under NDA, so I'm unclear on what I can even talk about as relates to his character and dealings outside of our project contract, but it's mindblowing stuff.

The only work we were able to get to during the brief project life (about a week or less including a single weekend during the project - 2 days when I do not work) is the SEO research and analysis/recommendations, about 2 hours of phone consulting time, plus 2 pages of content, which he praised to the sky, before he realized he didn't actually "have the money" to pay me for the agreed-upon work. He also stated in messages that he "got value" from my phone consulting. He simply didn't understand the first thing about SEO, despite my breaking it down for him on the phone (remember this was part of the consulting he "got value from"), as was the "beautifully written" content he later said he wanted refunded for unintelligible, round-about reasons.

That's all I can think of right now. This is a daily hell for me as I try to earn money and work every day in the meantime and try to stay sane. He knows this, which is I'm sure why he's trying it.

[petra_r]

---

Mark B wrote:

Well, I can definitely think of a reason to use manual time in that situation.

---

Thing is, it matters no one iota, because on hourly disputes all that matters is the work diary. It boils down to "properly tracked" or "not properly tracked."

Manual time = not protected. Game over.

---

Mark B wrote:

, thus hourly tracking in realtime makes no sense there - it's not hourly, it's word-count.

---

It's an hourly contract so it's hourly.

In other cases I have seen, Upwork reversed all manual time under the bit that says "Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Upwork Escrow to make appropriate releases to Client"

[searchwiz]

Well, the hours >WERE< tracked properly and exactly as stated they would be tracked within the proposal before the project was ever offered to me, so the client clearly understood all of that. I can certainly show anyone all of this at any time if anyone were to actually ask me (of course, the mediator has that access as did/does the client).

But more importantly here, the "dispute assistance" you referenced is stated on the legal page you referenced as being a "non-binding" dispute assistance (a mere mediation), unlike the 5-day review period, which the page you cited lists as the binding "dispute period". "Non-binding" is also further explained on that same page as being just that, optional, up to me and whatever I agree to. Please don't take this as a challenge personally, I am just reading what the legal terms state in black and white, and of course, it's my money, time and effort at stake.

[petra_r]

---

Mark B wrote:

Well, the hours >WERE< tracked properly and exactly as stated they would be tracked within the proposal before the project was ever offered to me,

---

Not under the terms of Upwork's hourly protection.

---

Mark B wrote:

But more importantly here, the "dispute assistance" you referenced is stated on the legal page you referenced as being a "non-binding" dispute assistance

---

They state it poorly and not clearly at all and then go on and say that at their own discretion they can do what they like and give they client their money back...

I hope it works out for you! I was talking to a client just yesterday who had a week's worth of manual time reversed to him in a similar case.

[searchwiz]

Also quoting from the page:

UpWork can dock pay only "if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.'

To this stipulation craftily added to the "non-binding" 30-day "dispute assistance", I would like to reiterate that the manner in which all charges were assessed and listed on the Work Diary and tracker were expressly already explained and fully listed out in detail within the project's terms stipulated within my proposal before the offer was made or accepted. That would indicate it is not "game over" at that point according to UpWork's own legal notice regarding the "dispute assistance" 30-day period.

[tlbp]

For other freelancers who want to know what red flags look like.

This right here: 👇

"Sept 16th: Accepted the offer after the client pleaded with me to accept and assured me he understood the project terms in the proposal and reinforced many times verbally in the many (free) phonecalls of consulting he squeezed out of me before project start"

OP,  I don't post this to criticize. You aren't the only one to be burned by a client who insists that everything will be just fine. But, for anyone else reading, prior behavior is the best predictor of future behavior.

In the words of Maya Angelou, "When someone shows you who they are, believe them the first time." 

[petra_r]

---

Tonya P wrote:

For other freelancers who want to know what red flags look like.

This right here: 👇

"Sept 16th: Accepted the offer after the client pleaded with me to accept and assured me he understood the project terms in the proposal and reinforced many times verbally in the many (free) phonecalls of consulting he squeezed out of me before project start"

OP,  I don't post this to criticize. You aren't the only one to be burned by a client who insists that everything will be just fine. But, for anyone else reading, prior behavior is the best predictor of future behavior.

In the words of Maya Angelou, "When someone shows you who they are, believe them the first time." 

---

I thought exactly the same.

It once again confirms my long held belief that a freelancer's success (and sanity) is defined more by the contracts and clients he or she walks away from, than those he or she accepts.

[searchwiz · Accepted solution]

Also, it says on that page you linked to ("legal" page TOS) that the

"Client must review and approve or dispute the Hourly Invoice by 11:59 PM UTC of the Friday following submission of the Hourly Invoice."

It was already after the review period when he ended the contract and (same day) also requested the refund. I think the mediation was begun days even after that point, and certainly the payment had long ago cleared the 5-day review and had also long ago cleared my bank, so it should not be a dispute and is not being treated as such (it is being called a "mediation" as far as I understand, since it was well after the Friday after the submission of the hourly invoice).

[AveryO]

Hi Mark, 

You may also refer to the "Hourly Mediation" section noted on this thread for more information about disputes. In the thread, Valeria has noted that - 

"Clients may request mediation assistance by contacting Upwork Support within 30 days of the last payment on a contract. The Mediation Team will work with both users to resolve the dispute. If no agreement can be reached, the Mediation Agent will review the last 30 days of logged time. Upwork will authorize payment of all hours that meet the criteria for Hourly Payment Protection. The freelancer may refund the hours for work that does not clearly relate to the client’s project, or they must reach another agreement with the client with respect to those hours."

I am editing this section of my post to reflect updated information about Hourly Disputes. Mark, you may refer to Section 7.2 Upwork Dispute Assistance of the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions. In this section it is stated that - 
Non-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Client to Freelancer. If Client or Freelancer contacts Upwork via support ticket within 30 days of the date of the last payment from Client to Freelancer and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Upwork will attempt to assist Client and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution. Upwork will only review the 30 days of work performed prior to the date a User requests Dispute Assistance.

In this case, your ticket is being handled by a mediation specialist to facilitate discussion between you, and your client, and help both of you come to a mutual agreement. 

[petra_r]

---

Avery O wrote:

You may also refer to the "Hourly Mediation" section noted on this thread for more information about disputes. In the thread, Valeria has noted that - 

"Clients may request mediation assistance by contacting Upwork Support within 30 days of the last payment on a contract. The Mediation Team will work with both users to resolve the dispute. If no agreement can be reached, the Mediation Agent will review the last 30 days of logged time. Upwork will authorize payment of all hours that meet the criteria for Hourly Payment Protection. The freelancer may refund the hours for work that does not clearly relate to the client’s project, or they must reach another agreement with the client with respect to those hours."

---

Indeed.

But since then the wording on the legal pages has been changed and according to the new version, the above contradicts what it says under 7.2

[AveryO]

Appreciate the flag, Petra! I have shared this with the team so that we can update the thread to reflect the information noted on Section 7.2 Upwork Dispute Assistance of the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions. 

[kochubei_valeria]

---

Petra R wrote: Indeed.

But since then the wording on the legal pages has been changed and according to the new version, the above contradicts what it says under 7.2

---

Hi Petra,

We've discussed this with Avery and our Dispute team and confirmed that the information in the Content Corner post still aligns with Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions and our internal processes. Upwork will authorize the payment for hours if they meet the criteria for Hourly Payment Protection.

Could you please clarify why you find that part of the Content Corner post contradictory to the ToS?