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Martin Brink

Martin Brink

Martin Brink
Article

The Corporate Mediator – Supporting People, Fights, Flights and Flows

Journal Corporate Mediation Journal, Issue 1 2017
Keywords conflict resolution, ethics, EUROCONTROL, international public service, social dialogue
Authors Anna Doyle
AbstractAuthor's information

    Responding to Martin Brinks’ inaugural CMJ article (that asked if corporate mediation was a prospect for the legal department and for organisations as a whole) Anna Doyle responded with a resounding affirmative. A professional career that has spanned over four decades took her on a route through national and international public services, working in areas as diverse as promoting legislation for social justice to supporting the safety of air navigation. Her first-hand experience of the challenge of responding to the ups and downs of daily working life in a multi-cultural setting has opened up new frontiers in awareness of the value of conflict resolution. Her work at EUROCONTROL has pioneered the role of corporate mediator and has embedded mediation and ethics in organisational life in a way that aims to bring added value and promote shared insight.


Anna Doyle
Anna Doyle is Mediator & Ethics Officer at EUROCONTROL, the European Organisation for the Safety of Air Navigation based in Brussels. She specialises in mediation, ethics, conflict resolution, human resources management, social dialogue and negotiation. She is a Practitioner Member of the Mediators’ Institute of Ireland and a Certified Mediator with the International Mediation Institute.

    This article proposes mediation models in business school curriculum and for business implementation as part of risk assessment, risk management and conflict mitigation procedures. Through a solution-focused approach, the article sets forth a new methodology known as Economic Efficiency through Mediation (“EEM”) to combat asymmetric information risks and provide early conflict resolution pathways. EEM aims to act as a hedge instrument for commercial stakeholders facing uncertainty, imbalances in analyzing data, making decisions, and conflict challenges to their systems. EEM is a risk mitigation procedure for the business community to adopt and business schools to include in risk assessment and risk management programs. The EEM model will help improve efficiency, functionality and fluidity in the market place.


David S. Weiss
David Weiss, Esq. is currently a Professor, Visiting Scholar, and Founding Director of the Institute for Dispute Resolution (IDR) at New Jersey City University. He recently was awarded the distinguished James B. Boskey Award, recognised as the highest honor that an individual can achieve in the state of New Jersey in the development and practice of ADR. Professor Weiss is the author of the recent New Jersey ‘International Arbitration, Conciliation and Mediation Act’ to enforce mediation settlement agreements as awards internationally, and has published extensively on the subject of mediation. He is a continued delegate at UNICTRAL at the United Nations for several NGOs working on universal instruments for enforcement of mediation settlement agreements, a current member of the International Mediation Institute (IMI) Finance Committee, co-founder of the first not-for-profit international mediation center in New Jersey (Global Exchange Mediation Center), a certified IMI Mediator, and an attorney admitted to practice in New York, New Jersey, and the District of Columbia.

Interview by Claire Mulder

Martin Brink

Marc Kraus
Marc Kraus LLM, is based in Amsterdam and works at Dialogue BV, The Netherlands.
Article

Should Mediation Be a Core Part of a Legal Degree in the Netherlands?

An Opportunity Not to Be Missed, Especially for Corporate General Counsels of the Future!

Journal Corporate Mediation Journal, Issue 1 2017
Authors Claire Mulder
Author's information

Claire Mulder
C.S.A. Mulder LLM, is based in London and is Editor of the Corporate Mediation Journal.
ECJ Court Watch

Case C-472/16. Transfer of undertakings

Jorge Luis Colino Sigüenza – v – Ayuntamiento de Valladolid, In-pulso Musical, Sociedad Cooperativa, reference lodged by the Spanish Tribunal Superior de Justicia de Castilla y León on 24 August 2016

Journal European Employment Law Cases, Issue 1 2017
Keywords Transfer of undertakings
ECJ Court Watch

ECJ 15 December 2016, joined cases C-401/15 to C-403/15 (Depesme), Free movement, social insurance

Noémie Depesme (C-401/15), Saïd Kerrou (C-401/15), Adrien Kauffmann (C-402/15) and Maxime Lefort (C-403/15) – v – Ministre de l’Enseignement supérieur et de la Recherche, Luxembourgian case

Journal European Employment Law Cases, Issue 1 2017
Keywords Free movement, Social insurance
Abstract

    These cases concern the refusal by Luxembourg to grant financial aid to students studying in Luxembourg whilst living in France or Belgium, when they would be entitled to such aid under Regulation 492/2011 on free movement (pursuant to Article 45 TFEU), based on their family circumstances, were it not that the person employed in Luxembourg was not their father but their stepfather. The ECJ found in favour of the students.

ECtHR Court Watch

ECtHR 25 October 2016, application nos. 45197/13, 53000/13 and 73404/13, Diplomatic immunity in labour relations

Radunović and Others – v – Montenegro, Montenegronian case

Journal European Employment Law Cases, Issue 1 2017
Keywords Diplomatic immunity in labour relations

    Following consultations with its employees in accordance with the Finnish Codetermination Act (334/2007), a company informed the employees that it would close down its current office premises and move its operations, including all of its employees, to another location. An employee, whose employment contract expressly stipulated the location of the old office as the fixed place of work, refused to transfer and did not arrive at the new place of work after the transfer. The company considered the employee’s absence unjustified and terminated her employment with immediate effect. The Supreme Court held that an employer can, as an alternative to termination of employment, unilaterally amend material terms of employment provided it notifies the employees sufficiently clearly of the terms being amended, the time when the new terms would come into effect, the grounds for termination, and the consequences of not accepting the amendments.


Kaj Swanljung
Kaj Swanljung and Janne Nurminen are respectively a Senior Counsel and a Senior Associate with Roschier in Helsinki, www.roschier.com.

Janne Nurminen

    A claim for compensation for discrimination was not excluded simply because the applicant did not have the ‘objective qualifications’ necessary for the job. According to the German General Equal Treatment Act (the ‘Allgemeines Gleichbehandlungsgesetz’, or ‘AGG’), what is necessary for a compensation claim is a ‘comparable situation’. According to the latest decision of the German Federal Labour Court (the ‘Bundesarbeitsgericht’, or ‘BAG’) this can occur even if the applicant does not fulfill the general requirements to do the job.


Paul Schreiner
Paul Schreiner and Nina Stephan are respectively partner and associate with Luther Rechtsanwaltgesellschaft MbH, www.luther-lawfirm.com.

Nina Stephan
Paul Schreiner and Nina Stephan are respectively partner and associate with Luther Rechtsanwaltgesellschaft MbH, www.luther-lawfirm.com.
ECJ Court Watch

Case C-474/16. Social security

The public prosecutor, Belu Dienstleistung GmbH & Co KG, Stefan Nikless, reference lodged by the French Cour d’appel de Colmar on 29 August 2016

Journal European Employment Law Cases, Issue 1 2017
Keywords Social security
Article

2017/1 Early retirement pension cannot justify age discrimination (AU)

Journal European Employment Law Cases, Issue 1 2017
Keywords Age discrimination
Authors Peter C. Schöffmann and Andreas Tinhofer
AbstractAuthor's information

    The Austrian Supreme Court has held that the selection of employees for redundancy because of their entitlement to an early retirement pension constitutes unfair dismissal on grounds of direct age discrimination. Although it was accepted that individual employers (here the Austrian Broadcasting Corporation) can pursue a legitimate aim within the meaning of Article 6(1) of Directive 2000/78/EC, the means to achieve that aim were not considered appropriate and necessary. The Court stressed that a balance must be struck between the interests of older and younger employees, taking into account that it is generally easier for younger employees to find a new job. In the case at hand, however, the employer had not managed to show that its redundancy selection programme met that requirement.


Peter C. Schöffmann
Peter C. Schöffmann and Andreas Tinhofer are respectively an associate and partner at MOSATI Rechtsanwälte, www.mosati.at.

Andreas Tinhofer
Peter C. Schöffmann and Andreas Tinhofer are respectively an associate and partner at MOSATI Rechtsanwälte, www.mosati.at.

    A Spanish Supreme Court decision issued on 17 October 2016 (no. 848/2016) declares employee terminations void because the employer failed to respect the proper collective redundancy procedures based on the thresholds provided by EU Directive 98/59. The thresholds in the Directive refer to the number of employees at the establishment, whereas thresholds under Spanish law refer to the whole company. In implementing the Directive, Spanish law had aimed at being more favourable to employees, but this did not happen on the facts of this case.


Sonia Cortés
Sonia Cortés is a partner with Abdón Pedrajas & Molero, www.abdonpedrajas.com.
ECJ Court Watch

ECJ 24 November 2016, case C 454/15 (Webb-Sämann), Social policy

Jürgen Webb-Sämann – v – Christopher Seagon, German case

Journal European Employment Law Cases, Issue 1 2017
Keywords Social policy
Abstract

    Under Article 8 of Directive 2008/94, if an employer becomes insolvent in circumstances where it previously withheld funds from an employee’s salary to pay into an occupational pension scheme – but then failed to make those payments – there is no requirement to exclude those funds from the scope of insolvency proceedings.

ECJ Court Watch

ECJ 1 February 2017, case C-430/15 (Tolley), Free movement, social insurance

Secretary of State for Work and Pensions – v – Tolley, British case

Journal European Employment Law Cases, Issue 1 2017
Keywords Free movement, Social insurance
Abstract

    Mrs Tolley, a disabled UK national, emigrated from the UK to Spain in 2002, at age 50. Before she left the UK, because she was unable to prepare a meal for herself, she was in receipt of DLA (disability living allowance) benefits. These benefits were stopped when she left the UK, because under UK law, only residents are eligible. Mrs Tolley appealed successfully to the First-tier Tribunal. Its decision was upheld by the Upper Tribunal and the Court of Appeal. The Secretary of State appealed to the Supreme Court, which referred questions to the ECJ, all relating to Regulation 1408/71 on the coordination of social security legislation within the EU (now Regulation 883/2004). The ECJ found in Mrs Tolley’s favour.

    In a much publicised case, Uber drivers have won a first instance employment tribunal finding that they are ‘workers’ and not self-employed contractors. This decision means that they are entitled to basic protections, such as the national minimum wage, paid holiday (under the Working Time Directive) and protection against detriment for ‘blowing the whistle’ on wrong doing. The decision could have substantial financial consequences for Uber, which has around 40,000 drivers in the UK but Uber has already confirmed that it will appeal the decision, so we are unlikely to have a final determination on this question for some time.


Bethan Carney
Bethan Carney is a lawyer at Lewis Silkin LLP: www.lewissilkin.com.
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