ADR as a precondition for suing: deadlines, proof and costs after Organic Law 1/2025

Organic Law 1/2025 of 2 January on measures regarding the efficiency of the Public Justice Service was published in the BOE on 3 January 2025 and entered into force on 3 April 2025. Among its novelties, the one with the greatest impact on the day-to-day work of law firms is the title devoted to appropriate means of dispute resolution, known in Spain as MASC (alternative dispute resolution methods).

The general rule is simple to state: in civil proceedings, a negotiated solution must have been attempted before suing. Its application has more nuances. This review is based on the text of the law and on the guide published by the General Council of the Spanish Legal Profession in April 2025.

What an ADR method is

Article 2 of the law treats as an ADR method any kind of negotiating activity that the parties undertake in good faith to find an out-of-court solution, by themselves or with a neutral third party. It is an open definition.

The recognised methods include:

• Direct negotiation between the parties or between their lawyers.
• Mediation, regulated by Law 5/2012.
• Conciliation, private or before a notary, registrar, court clerk (letrado de la Administración de Justicia) or justice of the peace.
• Confidential binding offer.
• Independent expert opinion.
• Collaborative law.

Where it applies and where it does not

The scope is civil and commercial matters, including cross-border ones. Employment, criminal and insolvency matters are excluded in all cases, as are matters in which one of the parties is a public-sector entity. Matters that the parties cannot freely dispose of cannot be submitted to ADR either.

Within civil proceedings, Article 5 exempts from the requirement, among others, proceedings for the protection of fundamental rights, the measures of Article 158 of the Civil Code, support measures for people with disabilities, filiation, summary protection of possession and the bill-of-exchange procedure. It is also not required to file an enforcement claim, to request prior interim measures or preliminary proceedings, or for the European order for payment procedure or the European small claims procedure.

The deadlines to watch

A negotiation request that identifies its subject matter interrupts the limitation period or suspends the expiry period from the date on which its sending is recorded. The periods resume if there is no response.

Under Article 10.4, negotiations are deemed to have ended without agreement when:

1. 30 calendar days pass from receipt of the request without a first meeting or a written reply.
2. 30 days pass from a specific proposal without agreement or reply.
3. Three months pass from the first meeting without agreement, unless the parties decide to continue.
4. One of the parties states in writing that it considers the negotiations to be over.

If there is no response or the negotiation ends without agreement, the claim must be filed within one year. In conciliation, the reference period in Article 7.2.b is 15 calendar days.

How the attempt is proven

Article 10 requires the attempt to be documented:

• Without a neutral third party, a document signed by both parties with their identity, the subject matter, the dates of the meetings and a joint declaration of good faith may suffice. If there is none, it may be enough to prove receipt of the request or the proposal.
• With a neutral third party, the latter must issue, at a party's request, a certificate with their qualification, the identity of the parties, the subject matter, the dates and a declaration of good faith.

The claim must describe the prior negotiation or explain why it was impossible, under Article 399.3 of the Civil Procedure Act. Without that requirement, the claim is not admitted, under Article 403.2.

Lawyer, confidentiality and fees

Legal assistance is voluntary in ADR, except in the confidential binding offer, where it is mandatory with exceptions such as claims of up to 2,000 euros. The negotiation process and its documents are confidential: only the fact that it was attempted and its subject matter fall outside that rule.

Each party pays its own lawyer, unless it has legal aid recognised, in which case those fees are covered.

Effects on costs

The law links prior negotiation to costs:

• Courts must assess the parties' cooperation in seeking a consensual solution and any possible abuse of the public justice service.
• Under the new wording of Article 394 of the Civil Procedure Act, if participation in ADR was mandatory, costs are not awarded in favour of the party that refused to take part without just cause after being properly invited.
• Under Article 245, a party ordered to pay costs can ask for exemption or a reduction if it made a proposal in an ADR process that the other party rejected and the judgment is substantially the same as it.

The guide of the General Council of the Spanish Legal Profession warns that the concept of abuse of the public justice service will be shaped by case law.

Practical checklist for the firm

1. Check whether the matter is exempt before sending anything.
2. Send the request by a means that records receipt and content.
3. Define the subject matter precisely: it must match that of the future claim.
4. Calendar the 30-day, three-month and one-year periods.
5. Keep the documentation that allows you to describe the negotiation in the claim.

The reform adds to other recent rules on professional practice, such as the Organic Law on the Right of Defence. If you practise on your own, keeping these deadlines under control is part of running your firm. More news in Industry news.