Eine Evaluierung des außergerichtlichen Schuldenregulierungsversuchs nach § 305 InsO unter besonderer Berücksichtigung der Frage der Anwendbarkeit mediativer Elemente im Bereich der vorgerichtlichen Schuldenregulierung von Verbrauchern

The Thesis deals with the obligatory pre-court debt adjustment attempt after the German consumer insolvency regulations. As a matter of fact, debt adjustment negotiations often fail. In this case, to file for an official insolvency procedure is the debtors only alternative to obtain total debt relief. Insolvency-Procedures, however, not only affect the immediate contractual parties but cause major economic disadvantages, too. Therefore, this thesis investigates the causes of failure. It questions if negotiations` success does solely depend to the debtor’s ability to offer a significant residual amount of money to his creditors or instead is also related to other determining factors. Additionally, it focusses on if mediation-principles are applicable and can help to enhance negotiation results.
At first, a comparative consideration of the consumer bankruptcy system of Austria tackles the question of if and in which form the pre-court debt adjustment attempt in Germany might be regulated in future. Secondly, a further comparative view regarding the consumer bankruptcy regulations of England & Wales gives impression of why pre-court debt adjustment attempts are more often successful there. Based on the fact that debt adjustment negotiations occur under the vail of discretion, big mounds of data regarding the actual reasons for its success or failure is not available. Hence, the research approach intends to adopt the characteristics of debt negotiations as good as possible by interviewing its participants in both ways: Debtors (respectively his consultants) as well as creditors or its legal representatives. Subsequently individual statements were transcripted and interpreted by method of qualitative data analysis. Afterwards results were validated by professionals acting in the field of consumer insolvency.
Evidence shows that debtors` capability to offer a residual payment is the major factor providing negotiations` success. However, there are a number of other key criteria, influencing negotiations` outcome, e.g. structure and precise content of the offer, discontinuity of interaction and the sheer number of creditors. Research also reveals a lack of credibility not only concerning the debtor’s willingness to achieve a consensus but moreover towards debtors’ consultants and if negotiations are led truthfully and in a fair manner.