By Mar Fernández
Is this a gateway to concord or just another step before filing a lawsuit?
The entry into force of Organic Law 1/2025, on measures regarding the efficiency of the Public Justice Service, has placed ADRs —Appropriate Means of Dispute Resolution— at the center of the legal debate.
And with good reason. Following this reform, in many civil and commercial matters, before filing a lawsuit, it will be necessary to prove that negotiations have been attempted. In other words, before going to court, the parties must demonstrate that they have tried to resolve the dispute through other means.
The big question is: are we facing a real opportunity to change the culture of conflict or just another bureaucratic requirement?
1. What are MASCs?
Organic Law 1/2025 defines ADR mechanisms as any legally recognized negotiation activity that the parties resort to in good faith to try to reach an out-of-court solution.
This concept includes, among others:
- ✅ mediation;
- ✅ reconciliation;
- ✅ the confidential binding offer;
- ✅ the opinion of an independent expert;
- ✅ direct negotiation between the parties;
- ✅ negotiation between lawyers;
- ✅ Collaborative Law.
The underlying idea is simple: not all conflicts need to end in court. In some cases, a negotiated solution can be faster, cheaper, and more satisfactory for both parties.
2. The big news: ADRs as a procedural requirement
The reform introduces a measure of enormous importance: in many civil and commercial processes, going to a MASC beforehand will be a procedural requirement.
This means that if a person wants to file a lawsuit, they must prove that they have previously attempted a negotiated solution.
For example, you can do this by demonstrating that:
✅ He went to mediation;
✅ He made a binding offer;
✅ attempted to negotiate directly with the other party;
✅ Participated in a conciliation;
✅ He consulted an independent expert.
If that prior attempt is not proven when required by law, the claim may not be admitted.
3. Why has this reform been introduced? 🏛️
The stated objective of the law is to improve the efficiency of the Public Justice Service.
The Justice Administration has been plagued for years by structural problems: delays, excessive workload, slow processing, and a sense of distance between citizens and the courts.
From this perspective, ADRs appear as a tool for:
- reduce litigation;
- avoid unnecessary procedures;
- promote agreements;
- to hold the parties responsible for managing their own conflicts;
- reserve legal action for those cases where it is truly essential.
The intention is good. But the way it's being implemented raises significant questions.
4. Mediation is not simply “negotiating”
One of the most delicate points of the reform is the tendency to place under the same umbrella concepts that are not exactly the same.
Negotiating is not mediating.
In negotiations, the parties—or their lawyers—defend their own positions and interests. Each party seeks to obtain the best possible outcome for itself.
In mediation, on the other hand, a neutral and impartial third party intervenes: the mediator. Their role is not to decide or impose a solution, but to facilitate communication, help organize the conflict, and guide the parties so they can build their own agreement.
For students and future professionals, it is important to understand this difference: negotiation can be part of regular legal practice; mediation requires a specific methodology, adequate training, and a neutral position.
5. The risk: turning the culture of agreement into a mere piece of paper 📄
The law aims to prevent ADR mechanisms from becoming a bureaucratic formality. However, the way in which the accreditation of the negotiation attempt is regulated may produce precisely that effect.
Let's imagine a common situation: a person goes to a lawyer because they want to sue. The lawyer knows they need to prove a prior attempt at negotiation. So they send a registered letter, make a proposal that's unlikely to be accepted, or document that the other party hasn't responded.
Result: the requirement has been formally met.
But, in reality, has there been a genuine willingness to engage in dialogue? Has there been an attempt to understand the conflict? Have the parties been informed about the mediation process? Has a real space for communication been opened?
Herein lies the risk: that ADR mechanisms will become a mere box to tick before filing a lawsuit. And if that happens, the reform will lose much of its purpose.
6. What would have been more useful? The importance of informing and educating 🎓
One of the most interesting ideas from the debate is that perhaps the path forward should not be so much about forcing negotiation, but about educating in the culture of mediation.
It is not enough to impose a requirement. Citizens need to be informed about what mediation is, how it works, how long it can last, its cost, its advantages, and the legal effects of an agreement.
A particularly reasonable proposal would be to require, before filing a lawsuit in certain matters, attendance at an information session on mediation and ADR.
Not to force mediation. Not to prevent access to the courts. But so that the parties truly understand their options.
Because no one can choose well what they do not know.
7. The essential role of the legal profession 👩⚖👨⚖️
The reform also requires a rethinking of the role of lawyers.
Traditionally, legal training has been very focused on litigation: claim, response, evidence, trial, judgment and appeals.
But the 21st-century lawyer needs something more. He needs to know:
- 🔹 when is it appropriate to litigate;
- 🔹 When is it convenient to negotiate?;
- 🔹 When to refer to mediation;
- 🔹 How to support your client without fueling the conflict;
- 🔹 How to legally protect an agreement;
- 🔹 How to prevent a dispute from escalating unnecessarily.
Good legal practice isn't always about litigating more cases. Sometimes it's about avoiding pointless litigation. And that doesn't weaken the profession. It dignifies it.
8. Does requiring a prior attempt at settlement violate the right to effective judicial protection? ⚖️
This is one of the key legal questions. The most reasonable answer is not necessarily.
The right to effective judicial protection does not mean that anyone can access the courts without meeting any procedural requirements. The legislature may establish access requirements provided they are proportionate, reasonable, and do not effectively prevent access to justice.
Therefore, requiring a prior attempt at a negotiated solution does not in itself violate the right of access to the courts.
The problem lies not so much in the existence of the requirement, but in how it is designed and how it is applied.
If the requirement is clear, simple, inexpensive, and useful, it can be constitutionally permissible and socially beneficial. If it becomes a costly, confusing, or purely formal barrier, then it can create serious problems.
9. The “abuse of the public justice service”: a controversial idea 🚨
Organic Law 1/2025 also introduces a controversial notion: the possible abuse of the public justice service.
The idea is that the courts can assess the conduct of the parties when, for example, one of them unjustifiably rejected a reasonable proposal and then the judgment ended up being substantially in accordance with that proposal.
On paper, the aim is to encourage agreements and avoid unnecessary litigation.
But an important objection also arises: a person who litigates because they believe they are right is not always abusing the system. They may be wrong, yes. But being wrong should not automatically be punishable.
It is necessary to distinguish between someone who litigates in good faith to defend a right and someone who uses the process to delay, pressure or harm the other party.
The border won't always be easy. And that's where jurisprudence will have its work cut out for it.
10. So, is the reform positive or negative? 🌱
The answer is not absolute.
The reform has a valuable intention: to promote a more agile, more participatory justice system that is less dependent on litigation.
It also acknowledges something very important: justice is not limited to the sentence. Often, a negotiated solution can be more effective than an imposed resolution.
But the reform has obvious risks:
- ✅ confusing mediation with simple negotiation;
- ✅ convert MASC into a documentary procedure;
- ✅ to charge additional costs to the parties;
- ✅ generate insecurity about the accreditation of the negotiation attempt;
- ✅ Using judicial decongestion as the main argument, instead of focusing on the quality of the conflict resolution.
The key will be in practice.
If legal professionals merely produce documents to meet the requirements, the reform will fail. However, if lawyers, mediators, judges, court clerks, institutions, and universities take the culture of agreement seriously, ADR (Alternative Dispute Resolution) can become a genuine opportunity.
11. An opportunity for future mediators ✨
For mediation students, this reform opens up an exciting scenario.
Society will need professionals capable of explaining, supporting, and managing conflicts from a perspective other than confrontation.
Mediation is not about "convincing the parties to give in." It is not about "avoiding litigation at all costs." It is not about "acting as an informal arbitrator.".
Mediation is a technical, ethical, and profoundly human tool to help people regain control over their conflicts.
And that requires training, rigor, active listening, neutrality, empathy, and sufficient legal knowledge.
Conclusion: From the temple of justice to the temple of concord 🕊️
Organic Law 1/2025 can be a gateway to a new legal culture. But that gateway won't open by itself.
It is not enough to impose ADR as a prerequisite. We must educate, inform, and build trust.
Citizens should know that going to mediation does not mean giving up their rights. It means exploring a different way to protect them.
Lawyers must understand that referring cases to mediation is not about losing their leading role. It's about practicing the profession with strategic intelligence.
And mediators must be prepared to assume an increasingly important role in the justice system.
Because an efficient justice system isn't just one that resolves conflicts quickly. It's one that offers the most appropriate solution for each conflict.
Would you like to dedicate yourself professionally to mediation or specialize in one of its branches? You've come to the right place. EIM We offer a wide variety of training courses to meet your most ambitious goals.
