The Three Targets of Insolvency Mediation: Dispute Resolution, Agreement Facilitation, Corporate Distress Management

TDM 4 (2017) Special Issue on Comparative and International Perspectives on Mediation in Insolvency Matters

24 Pages Posted: 15 Dec 2017

See all articles by Paola Lucarelli

Paola Lucarelli

University of Florence - Dipartimento di Diritto Privato e Processuale

Forestieri Ilaria

University of Florence - Law Department

Date Written: December 14, 2017

Abstract

Traditionally, in Italy the resolution of corporate distress was constricted to formal insolvency procedures. Until, recently, the development of a new approach toward insolvency and business failure has allowed legislators, both at a national and European level, to begin to have to pay an increasing attention to the use of out-of-Court debt restructuring mechanisms. These non-judicial proceedings hold many advantages compared to the formal insolvency proceedings. However, in numerous cases, out-of-Court debt restructurings are non-efficient because of several debtor-creditors negotiating issues and concerns. Mediation represents a valuable tool for creating a fair and effective negotiation process among the stakeholders involved in the restructuring process, to solve these potential issues.

The first section of the paper offers an overview of the Italian insolvency tools, which takes into particular consideration the different characteristics of informal restructurings alongside semi-formal (hybrid) debt restructurings adopted in Italy and in other main European countries. The second section describes the advantages and disadvantages of these restructuring proceedings. The third section focuses on the use of mediation in the insolvency context, to reach three different goals: (a) resolution of plan and bankruptcy-related disputes; (b) facilitation of negotiations on a restructuring plan; (c) prevention of insolvency. Finally, the analysis moves from theory to practice explaining the outcomes of an empirical research: in this final part mediation is considered in a non-traditional sense; rather than only a dispute resolution mechanism, mediation is seen as a way to train debtors and creditors to a new Rescue Culture.

Keywords: Out Of Court Solutions, Corporate Debt Restructuring, Mediation, Insolvency, Corporate Distress Management

Suggested Citation

Lucarelli, Paola and Ilaria, Forestieri, The Three Targets of Insolvency Mediation: Dispute Resolution, Agreement Facilitation, Corporate Distress Management (December 14, 2017). TDM 4 (2017) Special Issue on Comparative and International Perspectives on Mediation in Insolvency Matters, Available at SSRN: https://ssrn.com/abstract=3087979

Paola Lucarelli

University of Florence - Dipartimento di Diritto Privato e Processuale ( email )

via delle Pandette, 35
Firenze, Firenze 50127
Italy

Forestieri Ilaria (Contact Author)

University of Florence - Law Department ( email )

via delle Pandette, 35
Firenze, Firenze 50127
Italy

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