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In this case, three court-appointed mediators, including a former bankruptcy judge, played a pivotal role in negotiating and resolving an array of disputes that paved the way for Boy Scouts to obtain confirmation of its Chapter 11 reorganisation plan in September 2022, with the plan becoming effective in April 2023. Aside from the Singapore Convention, the introduction of new court procedural rules in local jurisdictions could support the use of mediation in insolvency matters, by providing courts with the power to refer the parties to mandatory mediation at any point of an insolvency process. Rules of that kind are currently very limited globally, with the United States being a notable exception. There, 40 of the 90 United States Bankruptcy Courts now permit, by rule or standing order, a bankruptcy judge to order the parties to a dispute to attempt mediation. In the Delaware Bankruptcy Court, a mandatory mediation program for adversary proceedings has been in place since 2004. It can reduce delays and costs—both increasing the prospect of successful restructuring outcomes for viable entities, and producing a better return for creditors. Through the platform, individuals can learn about their legal options while receiving support for an interest-based dialogue between the people involved. When users need more than this, Rechtwijzer 2.0 provides mediation, adjudication, and a neutral review of all agreements. The American Bankruptcy Institute also released in February 2015 its “Local Bankruptcy Rules for Mediation” as a resource for bankruptcy courts in adopting or revising local bankruptcy rules regarding mediation. The use of mediation to resolve cross-border insolvency and restructuring matters can be expected to continue in coming years with the growing complexity of the substantive legal matters that will come before bankruptcy and insolvency courts. Notably, there will be an important role for mediation in centralising and bringing cohesion to proceedings involving mass tort claims. While once spoken of as a “future trend”, mediation is now actively being used as a key bankruptcy and insolvency tool. In this article, we outline the benefits that mediation can offer in an insolvency scenario. We also consider advances in global policy and regulatory frameworks that will help to shape the central role of mediation as part of a best practice insolvency system, and we identify recent examples where insolvency mediation has been used to achieve optimal outcomes for the benefit of creditors and other stakeholders in significant and cross-border and other cases.

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Mediation has a significant role to play in coordinating the claims of disputing creditors in an insolvency context and guiding creditors towards a successful restructuring outcome. Mediation is also a valuable means to achieve court-to-court cooperation and communication in cross-border insolvency matters. A mediator could play a key role within the informal workout framework set out in INSOL's “Statement of Principles for a Global Approach to Multi-Creditor Workouts” (INSOL Principles), the second edition of which was released in March 2017. The central idea of the INSOL Principles is that, where a debtor is found to be in financial difficulties, creditors should seek to cooperate with one another to investigate the potential for an out of court negotiated restructuring attempt to reduce costs and maximise the final return. Couples pay €100 for access to Rechtwijzer, which starts by asking each partner for their age, income, education, and other information, then guides them through questions about their preferences. Couples with children, for example, are asked whether they are seeking sole or joint custody. Couples can request a professional mediator for an additional €360 or, if talks break down, a binding decision by an adjudicator, that happens in about 5% of cases. Martine de Koning advises the Dutch subsidiaries of globally-recognised brands on their international expansion, particularly across Europe. She also handles various franchise-related disputes, as well as providing distribution law advice. Sources praise the Utrecht-based lawyer for her “high technical level, client orientation and pragmatism.” Annemieke van der Beek focuses on competition law issues related to payment services, manufacturing and retail sectors. Franchise and commercial contracts expert Jelle Blom is well-versed in drafting and negotiating complex international agreements, while Isabel van Tuyll van Serooskerken is the go-to for cross-border and domestic litigation. Renske Sinke is noted for her expertise in commercial matters related to supply chains, distribution, franchise, agency and logistics. International franchising, distribution and commercial agency and commissionaire contracts are all key pillars of the practice, alongside commercial litigation and arbitration. The team is a popular choice for clients from the hospitality, technology, life sciences and fashion sectors. Martine de Koning heads the commercial and international trade group and is recommended for EU competition law and cross-border disputes before civil courts and EU and Dutch competition authorities. Advising on mergers and acquisitions and joint ventures, and handling abuse of dominance allegations in major litigations are all areas of experience for the EU and competition practice at Kennedy Van der Laan. While these existing global policy and regulatory frameworks envisage mediation as a critical restructuring and insolvency resolution tool, there are a number of options to further incentivise the use of mediation in insolvency scenarios. MSE insolvency reform is one of the key issues on the global restructuring and insolvency policy agenda at present, with a view to providing alternative insolvency processes outside the existing “one size fits all” formal insolvency options that typically involve substantial costs and time delays. A mediator could offer a distinct alternative insolvency mechanism for MSEs in financial distress. The role of mediation in helping to achieve creditor coordination and consensus can be especially important in cross-border settings. In this context, coordination difficulties among creditors with competing claims in multiple jurisdictions and operating under often very different insolvency regimes are even greater. So that’s about 1% of all Dutch divorces (my own information suggests Rechtwijzer may have been handling slightly more than that but not enough to make a big difference). Her ability to analyze and make the relevant connections, helps clients in a practical and structured way to find a solution to their conflict. “Martine de Koning is held in high esteem for her impressive counsel to clients in the hospitality sector, and her in-depth insights in the European competition legal framework.” Martine de Koning has a respected franchising practice that sees her advise on global matters. “At Kennedy Van der Laan, Martine de Koning ranks highly in the Netherlands. She is described as “a very professional hands-on lawyer with shrewd understanding of franchise agreements”, according to peers.” Burenruzies Mediationa de Koning maintains a clientele of fashion retailers and luxury brands, advising them on distribution agreements. There are some high-profile examples which demonstrate the benefit mediation has had in achieving more efficient outcomes in cross-border insolvency proceedings.