Spain | Appropriate Means of Dispute Resolution (ADR) as a prerequisite for litigation

The year 2025 marks a milestone in the Administration of Justice in Spain with the publication of Organic Law 1/2025 of 2 January on measures to improve the efficiency of the Public Justice Service, which introduces important measures to modernise the judicial system.

Among these, the compulsory use of Appropriate Means of Dispute Resolution (ADR) as a prerequisite for initiating civil proceedings stands out. This change aims to improve the efficiency of the judicial system and encourage consensual solutions between the parties. The Law will enter into force on 3 April 2025.

In this preliminary post, we will explore what this novelty entails, the types of ADR envisaged, their characteristics and the consequences of their implementation.

What are Alternative Dispute Resolution (ADR)?

ADR are mechanisms that allow parties to resolve disputes out of court, either through direct negotiations or with the help of a neutral third party. These means include options such as mediation, conciliation, independent expert opinion, collaborative law, confidential binding offer and other legally recognised tools.

The main objective of ADR is to reduce the workload of the courts and to offer citizens a faster, more efficient, and personalized alternative for resolving their disputes. It also seeks to promote a settlement culture, fostering more harmonious relations between the parties involved.

ADR as a procedural requirement

One of the most innovative aspects of the new law is that it makes it mandatory to attempt to resolve disputes through ADR before filing a lawsuit in civil matters. This means that, for a claim to be admissible, the parties must demonstrate that they have attempted prior negotiation activity, whether through mediation, conciliation, or any other recognised ADR.
However, there are exceptions. This requirement is waived in cases involving:

• Fundamental rights,
• Urgent measures concerning minors,
• Disputes relating to filiation, paternity or maternity,
• Support measures for persons with disabilities,
• Proceedings for negotiable instruments,
• When one of the parties is a public sector entity, among others.

This obligation applies to declaratory proceedings in Book II and special proceedings in Book IV of the Civil Procedure Act, but does not include enforceable claims or requests for precautionary measures or preliminary proceedings.

Types of ADR recognized

The law identifies several types of ADR that meet the procedural requirement:

1. Mediation: A neutral third party assists the parties to dialogue and reach an agreement.
2. Conciliation: An impartial professional suggests possible solutions to the conflict
3. Confidential binding offer: Any person who makes a confidential binding offer to settle a dispute.
4. Independent expert opinion: A specialist evaluates the case and offers a recommendation.
5. Collaborative law: Lawyers from both sides work together to find a solution without going to court.
6. Other mechanisms: Any negotiating activity recognised by law, such as direct agreements between lawyers for the parties.

Key characteristics of ADR

• Voluntariness and good faith: Although the attempt to negotiate is mandatory, the parties are not obliged to reach an agreement
• Confidentiality: Everything discussed during the process is confidential and cannot be used in a possible trial, except, inter alia, by express written waiver of the parties.
• Suspension of deadlines: The initiation of an ADR interrupts the statute of limitations or suspends the expiration of legal actions.
• Flexibility: The parties can choose the ADR that best suits their needs.

Procedure and consequences of non-compliance

To prove that an ADR has been attempted, the parties must provide documentation demonstrating the negotiation effort, such as signed minutes or, if there is no agreement, a certification issued by the mediator, conciliator or expert. If this requirement is not met, the claim may be inadmissible.

In the event that the negotiation process ends without agreement, the parties may go to court, but the attitude of the parties during the negotiation may influence decisions on procedural costs or possible sanctions for abuse of the judicial system.

Advantages of ADR

The introduction of ADR as a prerequisite to litigation can offer multiple benefits:

1. Judicial decongestion: It reduces the workload of the courts, allowing for a more streamlined resolution of cases
2. Lower costs: ADR is often less expensive than a full court process
3. Faster: Many disputes can be resolved in weeks rather than months or years.
4. Tailored solutions: Settlements can be better tailored to the needs of the parties.
5. Preservation of relationships: They foster dialogue and understanding, reducing conflict between parties.

Criticisms and challenges

Despite its advantages, the implementation of ADR is not without its challenges:

• Lack of knowledge: Many people do not know what ADR is and how it works.
• Mistrust: Some citizens may perceive them as an additional obstacle to accessing justice.
• Training: It is essential to train professionals who will act as mediators, conciliators and experts.
• Initial costs: Although cheaper in the long run, the fees of the professionals involved may be a barrier for some users.

Conclusion

The introduction of ADR as a procedural requirement in the civil sphere represents a significant change in the Spanish judicial system. This measure seeks not only to streamline dispute resolution but also to foster a culture of settlement that benefits the parties and society.

Although the transition to this new model may face certain obstacles, the long-term benefits promise a judicial system that is more efficient, accessible, and adapted to the needs of the 21st century. In this sense, ADR is a tool for resolving disputes and a step towards a more humane and sustainable justice system.