{"id":6058,"date":"2020-10-12T23:43:09","date_gmt":"2020-10-12T21:43:09","guid":{"rendered":"https:\/\/dev.inkovema.de\/?p=6058"},"modified":"2020-10-13T23:29:53","modified_gmt":"2020-10-13T21:29:53","slug":"restructuring-mediation-in-the-corporate-crisis-in-times-of-the-covid-19-epidemic-guest-contribution-by-uwe-kassing","status":"publish","type":"post","link":"https:\/\/dev.inkovema.de\/en\/blog\/restructuring-mediation-in-the-corporate-crisis-in-times-of-the-covid-19-epidemic-guest-contribution-by-uwe-kassing\/","title":{"rendered":"Restructuring mediation in the corporate crisis in times of the COVID-19 epidemic – Guest article by Uwe Kassing"},"content":{"rendered":"

Restructuring mediation<\/h1>\n

in the corporate crisis<\/h1>\n

in times of the COVID-19 epidemic<\/h1>\n

<\/h3>\n<\/div><\/div><\/div><\/div><\/div>
<\/div><\/div>
\"Guest<\/span><\/div>
Guest article by Uwe Kassing<\/h5>\n

Hamburg – Leipzig – October 2020<\/p>\n

Legal scholar, Ass. jur,
\nSpecialist lawyer for insolvency law (DAA),
\nCertified mediator (DAA)
\nReorganisation mediation,
\nCertified ESUG consultant (D.I.A.I.)<\/h5>\n<\/div><\/div><\/div>
<\/div><\/div><\/div><\/div>

A. Restructuring mediation<\/strong> – the mediation approach for (insolvency) threatened companies<\/strong><\/h2>\n


\n<\/strong>The Restructuring mediation<\/em><\/strong> is a mediation approach that focuses on the special circumstances of a corporate crisis and differs in terms of complexity and duration from a typical mediation case (as a 2-party conflict)<\/em> deviates.<\/p>\n

A corporate crisis regularly creates internal and external conflict situations that provide an opportunity to resolve them with the help of mediation. In the context of overcoming the crisis situation, if the entrepreneur realises this in good time, the path of restructuring is taken. This regularly means that decisions are made in an exceptional situation under great time pressure and physical and psychological stress for those involved. This situation is currently being exacerbated by the effects of the COVID-19 pandemic, which is placing an additional burden on companies in several respects.<\/p>\n

The – necessary internal structural changes, also due to the COVID-19 pandemic, usually in all areas of the company, must also be implemented in the face of resistance, which often arises from the change in habits and traditional business processes alone (keyword: digitalisation). For example, those involved are required to make financial concessions or personal contributions to changes in work processes to support the reorganisation. This leads to internal conflicts,<\/em><\/strong> which must not remain unresolved if the implementation of the reorganisation approaches is to be successful in the long term.<\/p>\n

As soon as the implementation of internal reorganisation approaches also requires the involvement of the company's external (contractual) partners, the entrepreneur's\/company's personal and economic network of relationships must be Remediation contributions<\/strong><\/em> to negotiate. In most cases, this essentially involves changing the external financing structures and the measures derived from this. For example, credit institutions, suppliers, service providers and landlords are approached in order to achieve financial support for the reorganisation process, typically by increasing the financing volume, changing payment terms or agreeing (partial) waivers.<\/p>\n

If the company is already in a crisis stage, which affects the earnings and liquidity situation in such a way that a situation close to insolvency arises, this typically results in a External distribution conflict<\/em><\/strong> between the company and its creditors. The pressure on the company management to act increases in particular when the Duties of the executive bodies of corporations<\/strong><\/em> that the deadlines for filing for insolvency must be observed if there are grounds for insolvency (Sections 15a, 17, 19 InsO).<\/p>\n<\/div>

<\/i><\/span>Our 2020 roundup post: Current opportunities and risks for mediators<\/span><\/a><\/div>

B. The avoidance of insolvency through <\/strong>Restructuring mediation<\/strong><\/h2>\n

Against the backdrop of the COVID-19 pandemic, which has been ongoing for months, it is important for corporations although the obligation to file for insolvency is temporarily suspended<\/strong><\/em> (pursuant to COVInsAG – in the event of insolvency pursuant to Section 17 InsO until 30 September 2020; in the event of over-indebtedness pursuant to Section 19 InsO until 31 December 2020), but this does not change the fact that the companies concerned should actively deal with the crisis situation in order to avoid court insolvency proceedings.<\/p>\n

The COVID-19 epizootic, Increasing threat of insolvency for companies<\/strong><\/em> has already become known nationwide ( Galeria Kaufhof\/ Karstadt, Condor, Esprit ). <\/em>According to experts, this should lead to a \"Insolvency wave\"<\/em> <\/strong>This will also not be avoidable by the countermeasures adopted by the federal government, in particular the renewed extension of the short-time working allowance and the temporary suspension of the deadline for filing for insolvency. This measure would only postpone the otherwise necessary filing for insolvency. \"Zombie company<\/em>\"<\/strong> the talk (see FOCUS online, at www.focus.de<\/a>, dated 19 August 2020, \"Up to 800,000 zombie companies threaten economic situation in Germany\").<\/p>\n

This is the starting point for meaningful \"mediation in a corporate crisis\", a topic that I have been dealing with intensively in practice as a mediator under the \"restructuring mediation\" approach and as an author for years (see most recently Handbuch Mediation ed. Haft\/ von Schlieffen, 3rd edition, Munich 2016).<\/p>\n

A corporate crisis contains a \"bouquet\" of potential conflicts that are amenable to mediation. To avoid lengthy explanations, I will list the Areas of conflict that are currently in the foreground in practice<\/strong><\/em> (could) only in brief:<\/p>\n