Spain | Appropriate Means of Non-Jurisdictional Dispute Resolution: A New Paradigm in Spanish Justice

Introduction: A Paradigm Shift in Conflict Resolution

The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called « appropriate means of non-jurisdictional dispute resolution » as the cornerstone of a new justice model oriented towards dialogue and agreement.

The philosophy behind alternative means of dispute resolution

Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

Organic Law 1/2025 defines these means as « any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party ». This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

A range of possibilities: Diversity of mechanisms for diversity of conflicts

One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that « one size fits all » would not be effective for the diversity of situations that may arise.

The controversial commitment to enforceability: The requirement of procedural validity

Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

The guiding principles: Autonomy and confidentiality as pillars of the system

The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

The Negotiation Process: Relevant Procedural Aspects

The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

Specific Modalities: Diversity of mechanisms for diversity of conflicts

Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

The challenge of implementation: From theory to practice

The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

In this regard, the law requires that the negotiation attempt be « real and credible; it cannot be fictitious. » To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

A horizon to be explored: Perspectives and challenges

Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

Conclusion: Between Hope and Caution

The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.