Mandatory Pre-Trial Mediation in Spain

Article written by our mediator and collaborative lawyer Maria Serra Muñoz:

Comparative table: changes introduced by Organic Law 1/2025

Download comparative table – changes to the Labour Jurisdiction Act

Download comparative table – changes to the Civil Procedure Act

Unifying criteria of the Provincial Court of Appeal 2025

Pre-litigation obligations under MASC, Law 1/2025

The new Organic Law 1/2025 on measures to improve the efficiency of the public justice service aims to ease the backlog in the courts by promoting Alternative Dispute Resolution mechanisms (ADR, known in Spain as MASC), including conciliation, mediation, arbitration and negotiation.

From 2 April 2025, all civil proceedings will require a prior "negotiation attempt" except in proceedings concerning:

civil judicial protection of fundamental rights;
the adoption of measures provided for in Article 158 of the Spanish Civil Code;
the adoption of judicial support measures for persons with disabilities;
filiation, paternity and maternity;
summary protection of the possession or holding of a thing or right by a person who has been dispossessed of it or disturbed in its enjoyment;
applications for a court to order, by way of summary proceedings, the demolition or removal of a structure, building, tree, column or any similar object that is in a state of ruin and poses a risk of damage to the claimant;
the placement of minors with behavioural difficulties in specialist protection centres, entry into homes and other premises for the compulsory enforcement of child protection measures, or the return of minors in cases of international child abduction;

bill of exchange proceedings.

Nor does it apply to:

the filing of an enforcement claim,
the application for interim measures prior to a claim,
the application for preliminary proceedings,
the initiation of voluntary jurisdiction proceedings, with the exception of proceedings involving judicial intervention in cases of spousal disagreement and the administration of community property,
judicial intervention in cases of disagreement in the exercise of parental responsibility.
the European order for payment procedure under Regulation (EC) No 1896/2006
the initiation of a European small claims procedure under Regulation (EC) No 861/2007

And finally, it also does not apply to:

Any matters of a employment, criminal or insolvency nature, as well as matters of any kind, regardless of the jurisdictional court before which they are to be heard, where one of the parties is an entity belonging to the public sector.

What is meant by negotiation activity?

For the purposes of the Law 1/2025 on measures to improve the efficiency of the public justice service, an appropriate dispute resolution method means any form of negotiation activity, recognised under this or other national or regional laws, to which the parties to a dispute resort in good faith with the aim of reaching an out-of-court settlement, whether directly between themselves or with the involvement of a neutral third party.

How do you initiate the pre-dispute process?

The initiative to use appropriate dispute resolution methods may come from:

one of the parties,
both parties by mutual agreement,
or a judicial decision or a ruling by the Court Clerk referring the matter to one of these methods.

It is important to note that if all parties wish to use an appropriate dispute resolution method but cannot agree on which one to use, the method that was proposed first in time will be used.

Dispute resolution platform

Capibara is the digital platform that enables disputes to be resolved quickly, without the need to go to court. Through methods such as negotiation, mediation and arbitration, the parties can communicate in a secure, structured environment with the support of specialist professionals.
What's more, with Capibara you can submit your settlement proposal online in just a few steps, making it easy to get the process started and helping to reach fair, swift and effective solutions.

→ Decisions carry legal force and agreements are signed electronically within the application.

Start resolving your dispute on Capibara now

Suspension of Deadlines When Mediation, Conciliation, Arbitration, Negotiation, etc. Is Requested

What interrupts the right to bring a claim?

A request made by one of the parties will interrupt the limitation period or suspend the expiry of claims provided that:

the request addressed to the other party seeks to initiate an appropriate dispute resolution process,
the request adequately defines the subject matter of the negotiation,
it is dated from the date on which there is evidence of an attempted communication at the personal address or place of work known to the requesting party
or from the date on which electronic communication was attempted using the means previously used by the parties in their dealings.

How long does the interruption or suspension last?

The interruption or suspension will continue until:

the date on which an agreement is signed
or the date on which the negotiation process concludes without an agreement.
in the event that the first meeting aimed at reaching an agreement does not take place.
or in the event that no written response is received within thirty calendar days from
- the date of receipt of the request,
- or from the date of the attempted communication, if receipt did not occur.
in the event that a specific proposed agreement (confidential binding offer) receives no response from the other party within thirty calendar days of receipt, the time limit will restart or resume, as applicable.

From what date are claims interrupted?

Interruption where a neutral third party is involved:
a) where a MEDIATOR is involved, the provisions of Article 4 of Law 5/2012, of 6 July, on mediation in civil and commercial matters shall apply (our mediators at Conesa Legal meet the requirements set out in Article 16 of that Act).

That is, from the date on which receipt of the request by the mediator is evidenced, or the date of submission to the mediation institution where applicable:
- the time limit will resume if, after 15 days, the minutes of the inaugural session have not been signed (Article 19).
- until the date of signing of the mediation agreement or, failing that, the signing of the final record,
- or when the termination of the mediation occurs on any of the grounds provided for in this Act.
b) where a CONCILIATOR is involved, the request to initiate conciliation will interrupt the limitation period or suspend the expiry of actions
- from the date on which receipt of that request by the conciliator is recorded, with the running of the relevant periods restarting or resuming, as applicable, where within fifteen calendar days of the date of receipt of the request by the conciliator, no attempt has been made by the conciliator to communicate with the other party,
- fifteen calendar days from receipt of the proposal by the party to whom the conciliation request is addressed,
- or 15 days from
  - the date of the attempted communication if such receipt does not take place,
  - the first meeting aimed at reaching an agreement is not held,
  - or no written response is received.

Should conciliation proceedings be opened, the interruption or suspension will continue until the date of signing of the agreement or when the termination of the conciliation occurs.

c) where an INDEPENDENT EXPERT is involved, the limitation period will be interrupted or the expiry of actions suspended from the date of the joint appointment of the expert by mutual agreement, with the running of the relevant periods restarting or resuming, as applicable, from the date of acceptance of the final agreement by all parties or the issuance of a certificate confirming that an attempt has been made to reach an agreement through this route.

d) where a COURT CLERK (LETRADO DE LA ADMINISTRACIÓN DE JUSTICIA) is involved, the provisions of Act 15/2015 of 2 July, on Voluntary Jurisdiction, shall apply with regard to the suspension of the expiry of actions and the interruption of the limitation period, and shall apply subsidiarily in cases where a notary, or a notary, registrar or land registrar acts as conciliator.

Interruption where there is no response or where negotiations end without agreement.

Where the initial negotiation request receives NO RESPONSE OR WHERE NEGOTIATIONS END WITHOUT AGREEMENT: the parties must file the claim within one year from, respectively, the date on which the negotiation request was received by the party to whom it was addressed or, where applicable, from the date on which the negotiation process ended without agreement, in order for the procedural admissibility requirement to be considered satisfied.

Interruption where interim measures have been granted.

Where INTERIM MEASURES have been granted during the course of the negotiation process, the parties must file the claim before the same court that granted those measures within twenty days of the conclusion of the negotiation process without agreement, or from the date on which the negotiation process must be deemed to have ended without agreement under this Act.

Where interim measures were granted before the negotiation process commenced, the twenty-day period for filing the claim shall be suspended and shall resume, respectively, in accordance with the terms set out in the preceding paragraph:

from the date the agreement is signed
from the date the negotiation process ends without agreement.
from the date the first meeting aimed at reaching an agreement fails to take place.
from the date no written response is received within thirty calendar days calculated from
- the date the request was received,
- or from the date of the attempted communication, if receipt did not in fact occur.
from the date a specific proposed agreement (confidential binding offer) receives no response from the other party within thirty calendar days of the date of receipt, the time limit shall restart or resume, respectively.

Evidencing the attempted negotiation and the conclusion of the process without agreement:

For the purpose of demonstrating that a negotiation process was attempted, that process must be documented in writing.

By agreement (which must meet the requirements of Article 12)
By a document signed by both parties evidencing their negotiating activity (meeting the requirements of Article 10), where no neutral third party has been involved.
By any document proving that the other party has received the request or invitation to negotiate or, where applicable, the proposal, indicating the date on which it was received and confirming that the party was able to access its full content.
By certificate issued by whoever acted as neutral third party (which must contain the requirements of Article 10) certifying the agreement reached, the failure to reach agreement, or the non-appearance of any party that did not attend or refused the invitation to participate in the negotiating process.

Conclusion of the process with agreement:

The agreement may cover some or all of the matters submitted to negotiation. Any agreement reached shall be binding on the parties, who may not bring a claim on the same subject matter. The only challenge available against the terms of such an agreement shall be an action for annulment on grounds that would invalidate a contract, without prejudice to any objection that may be raised, where applicable, in enforcement proceedings.

For the agreement to have the force of an enforceable title, it must be executed as a public deed, or be judicially approved, or be recorded in the certificate referred to in Article 103 bis of the Mortgage Act if it results from a registry conciliation procedure.

Conclusion of the process without agreement:

The process shall be deemed to have concluded without agreement where:

a) thirty calendar days have elapsed from the date on which the other party received the initial request to negotiate, and either:
- no first meeting or contact aimed at reaching an agreement has taken place, or
- no written response has been received.
b) Once negotiating activity has commenced, thirty days have elapsed since one party submitted a specific proposed agreement to the other, without an agreement being reached or a written response being received. The thirty-day period shall begin on the date on which the specific proposed agreement was received.

c) If three months have elapsed from the date of the first meeting without an agreement having been reached. Notwithstanding the above, the parties are entitled to continue negotiations beyond that period by mutual agreement.

d) If either party notifies the other in writing that it considers the negotiations to be at an end, provided there is evidence of an attempt to communicate that intention.

Recognised forms of pre-litigation negotiation activity:

The negotiation requirement will be deemed satisfied if the parties have previously resorted to:

the INTERVENTION OF A NEUTRAL THIRD PARTY
- mediator (find out who can mediate your dispute and how)
- conciliator
- neutral evaluation by an independent expert (including arbitration).
the submission of a CONFIDENTIAL BINDING OFFER
any other form of RECOGNISED NEGOTIATION ACTIVITY provided for under this or any other law, whether national or regional.
In particular, the requirement will be deemed satisfied where the negotiation activity is conducted directly by the parties, or between their lawyers acting under their instructions and with their consent.
cases where the parties have engaged in a COLLABORATIVE LAW process.

Appropriate out-of-court dispute resolution mechanisms governed by specific legislation.

ANY OTHER appropriate dispute resolution mechanism provided for in other legislation shall also be valid.
STATUTORY MEDIATION as governed by Law 5/2012, of 6 July, on mediation in civil and commercial matters, and, where applicable, by the relevant regional legislation. Notwithstanding this, for the purposes of this law, mediation constitutes one of the appropriate dispute resolution mechanisms by which the procedural admissibility requirement referred to in Article 5.1 may be satisfied.
Conciliation before a notary shall be governed by the provisions of Chapter VII of Title VII of the Notarial Law, of 28 May 1862, without prejudice to the provisions of Article 5.1.
Conciliation before the REGISTRAR shall be governed by the provisions of Title IV bis of the Mortgage Law, without prejudice to the provisions of Article 5.1.
Conciliation before the COURT CLERK (Letrado de la Administración de Justicia) shall be governed by the provisions of Title IX of Law 15/2015, of 2 July, on Voluntary Jurisdiction.
Conciliation before the JUSTICE OF THE PEACE shall be governed by the provisions of Article 47 of Law 1/2000, of 7 January, on Civil Procedure, and by Title IX of the Law 15/2015, of 2 July, on Voluntary Jurisdiction.

Private conciliation

Any individual or legal entity intending to bring legal proceedings in defence of a right may call upon a person with technical or legal expertise relevant to the matter in question, to conduct a negotiation process aimed at reaching a conciliation agreement with the prospective defendant.

To act as a conciliator, a person must:

a) Be registered as a practising member of one of the professional associations for lawyers, procurators, social graduates (graduados sociales), economists, notaries or property registrars, or of any other legally recognised professional body; or be registered as a mediator in the relevant registers, or belong to a duly accredited mediation institution.
b) Be impartial and observe the duties of confidentiality and professional secrecy.
c) In the case of a professional company, such as Conesa Legal, S.L.P.U., it must meet the requirements set out in Law 2/2007 of 15 March on professional companies, and must be registered in the Register of Professional Companies of the professional association corresponding to its registered address. The individual acting as conciliator must also meet the requirements established in this provision, as do the lawyers, social graduates and economists at Conesa Legal.

The conciliation process must be conducted in accordance with the minimum requirements set out in Article 15.3, and the conciliator must fulfil the functions prescribed in Article 16.

Confidential binding offer.

1. Any person who, with the intention of resolving a dispute, makes a confidential binding offer to the other party is bound to fulfil the obligation they assume once the other party expressly accepts it. Such acceptance is irrevocable.
2. The means used to send both the offer and the acceptance must allow for a record to be kept of the identity of the offeror, confirmation of actual receipt by the other party, the date on which receipt occurred, and the content of the offer.
3. The binding offer shall in all cases be confidential, and the confidentiality provisions of Article 9 shall apply to it.
4. If the binding offer is rejected, or is not expressly accepted by the other party within one month or any longer period set by the requesting party, the binding offer shall lapse and the requesting party may bring the appropriate action before the competent court, on the understanding that the procedural admissibility requirement has been satisfied.
In such a case, it is sufficient to evidence that the offer was sent to the other party by means of an express statement in the claim or, where applicable, in the response to it. The relevant procedural document must be accompanied by proof that the offer was sent and received by the required party, without any reference being made to its content.

Independent Expert Opinion.

1. In order to resolve a dispute, the parties may by mutual agreement appoint an independent expert to issue a non-binding opinion on the subject matter in dispute. The parties shall be obliged to provide the expert with all information and evidence available to them regarding the matter in dispute.
2. The expert opinion may address legal questions or any other technical aspect related to the expert's professional qualifications. Such opinion, whether issued before or during legal proceedings, shall be confidential in nature.
3. Once the expert's non-binding opinion has been issued, the parties shall have ten working days from notification to make recommendations, observations or improvement proposals with a view to accepting the written opinion put forward by the expert.
4. Should the conclusions of the expert opinion be accepted by all parties, the agreement shall be recorded in the terms and with the effects previously described.
5. Where the expert opinion has not been accepted by one or more of the parties, the appointed expert shall issue each party with a certificate confirming that an attempt was made to reach an agreement by this means, for the purpose of satisfying the procedural admissibility requirement.
6. The expert must demonstrate that they hold the official qualifications guaranteeing the technical knowledge required in relation to the subject matter of their report. They must act diligently and adhere to the professional standards applicable to the task entrusted to them.

When issuing their report, every expert must declare, under oath or solemn affirmation, that they have acted and will, where applicable, continue to act with the greatest possible objectivity, taking into account both what may be favourable and what may be detrimental to any of the parties.

Collaborative Law Accredited Lawyer and Collaborative Process:

1. The parties may engage in a Collaborative Law process, whereby each party, accompanied and advised by a practising lawyer who is a member of a Bar Association and accredited in Collaborative Law, as is, for example, our lawyer Maria Serra Muñoz, and with the involvement, where applicable, of neutral third-party experts in the various areas covered by the dispute or communication facilitators, will seek a consensual solution, in whole or in part, to their dispute.
2. The fundamental principles of the collaborative process are: good faith, interest-based negotiation, transparency, confidentiality, teamwork between the parties, their lawyers, and any neutral expert third parties who may be involved, as well as the commitment by the legal professionals who have taken part in the process to refrain from pursuing litigation should a full or partial resolution of the dispute not be reached.
3. Following a collaborative process, the legal professionals who have taken part shall draw up a final record setting out the parties involved, the professionals who participated, the sessions held, the agreements reached, and any matters on which it was not possible to reach agreement between the parties.

WE ARE EXPERTS AND CAN ASSIST YOU WITH PRE-LITIGATION NEGOTIATION

Our firm has experienced conciliators, collaborative law practitioners, and mediators available to assist fellow lawyers in meeting this pre-litigation requirement and to work towards a rapprochement or settlement between the parties.