The Official State Gazette of 3 January 2025 publishes the Organic Act 1/2025 on Measures for the Efficiency of the Public Justice Service. This new organic text introduces a significant change in the Spanish judicial system, which follows in the wake of Royal Decree-Laws 5/2023 and 6/2023, and seeks to consolidate a sustainable and efficient justice system, aligned with the objectives of the Justice 2030 Plan. Among the most notable innovations are the implementation of the procedural requirement and the promotion of Appropriate Means of Dispute Resolution (ADR).
Since it is indisputable that the Spanish justice system faces structural deficiencies that have limited its effectiveness for decades, this reform aims to encourage the active participation of citizens in the resolution of their disputes through agreed mechanisms that promote social peace and reduce the burden on the courts. The mitigated obligation to resort to ADR before going to court underlines the key role of the legal profession as negotiators in this process.
The procedural requirement applies to civil and commercial matters, including cross-border disputes. However, labour, criminal and bankruptcy matters are excluded, as well as cases where one of the parties belongs to the public sector. In the criminal field, restorative justice measures are introduced, while in the administrative field a draft law is envisaged to regulate ADR in disputes involving the administration.
The procedural requirement is that, prior to the filing of a lawsuit, the parties should attempt to resolve the dispute through ADR. This requirement is deemed to be met if there is an identity between the subject matter of the negotiation and the dispute, even if the claims may subsequently change. However, there are exceptions for certain proceedings, such as those relating to fundamental rights, the protection of minors or foreign exchange litigation.
ADR includes options such as direct negotiation, mediation, private conciliation, expert third party opinion and collaborative law. The choice of means will depend on the parties, but if there is no agreement, the initially proposed means will be used. The negotiation activity must be documented, and if a neutral third party is involved, he or she must prove his or her participation by means of a formal document.
The keys to the negotiation process are as follows:
- Expiration and Statute of Limitations: The request to initiate an ADR interrupts the statute of limitations and suspends the expiry of the statute of limitations.
- Formalisation of the agreement: If an agreement is reached, it is executed in a public deed or judicially approved in order to be enforceable.
- Costs and Fees: A party who unreasonably rejects an ADR may not obtain a favourable ruling on costs. The fees of the lawyers and the neutral third party, if any, will be borne by the parties, subject to exceptions such as the right to legal aid.
Lawyers play a central role in fulfilling the procedural requirement. Their involvement is mandatory in certain cases, such as in the formulation of binding offers, and optional in others. The reform also allows the use of telematic means to speed up negotiations, especially in small disputes.
The negotiation process is protected by strict confidentiality rules. Information may only be disclosed in exceptional circumstances, such as for reasons of public order or by express dispensation of the parties.
The Act will enter into force on 3 April 2025 and will apply to proceedings initiated thereafter, although parties to ongoing proceedings may voluntarily submit to ADR.
As a critical assessment, it should be mentioned that, with the noble objective of speeding up and making justice more efficient, instead of eliminating procedural bureaucracy and antiquated formalities, as well as providing the courts with budgetary resources, it is opted, however, to make access to justice more difficult for citizens by imposing new formalities whose effectiveness will be residual.
Why do we say that the effectiveness of the new regulation will be very limited? I believe that it is a shared professional experience that in cases of civil or commercial disagreements, the parties – without the need for any organic law – negotiate and settle the conflict themselves or through representatives, before going to court, which is already known to be highly ineffective. In most cases, the entitled parties go to court not because there is a disagreement – we repeat that in these cases the parties negotiate motu propriu – but because there is a deliberate breach. And it seems that the legislator naively, almost roussonianly, confuses the two categories; and considers it appropriate to treat flagrant breaches with means aimed at weighing up apparently equivalent reasons.
We believe that there will be many cases in which the defaulting party will use the preambular phase of the procedure established with this procedural reform, with the aim of delaying and making it more expensive for the purchaser to obtain the justice sought by the innocent party. Time and practice will prove us right or wrong.