This week, together with the month of April, marks the entry into force of the application of many of the new features of Organic Law 1/2025, on measures for the efficiency of the Public Justice Service and whose practical significance, despite having been approved on 2 January, does not seem to have been sufficiently assimilated in professional practices, judging by the existence of multiple accelerated courses or “training pills” that are proliferating these days in specialised publications and professional social networks. The law aims to be very ambitious, as it substantially modifies the procedure and organisation of the courts as we have known them up to now.

Until we can confirm whether the measures really speed up the procedure and make it more efficient or, rather, delay it, as its detractors claim, it does seem to have led to the accelerated filing of lawsuits that firms had been «under construction» for weeks or even months and that have been filed en masse these last days of March, in order to avoid the application of the compulsory processing of what has come to be known as “ADR», the acronym for “Adequate Means of Dispute Resolution”. which stands for "Appropriate Means of Dispute Resolution".

These measures will be applied generally in the civil and commercial spheres (thus excluding labour and criminal jurisdiction, bankruptcy proceedings and those involving the public sector), and are configured as a procedural requirement, i.e. the parties must prove that they have resorted to one of these means of conflict resolution prior to the filing of the corresponding lawsuit.

As far as this lawyer is concerned, and I know that most of my colleagues act in the same way, the out-of-court negotiation prior to the filing of a lawsuit was and is a custom of professional practice and ethics, almost obligatory, in all civil and commercial matters, on the understanding that it was better for the client. a bad deal than good judgement. For this reason, almost all claims were accompanied by the proof of summons to the defendant by means of the well-known burofax or preliminary injunction, the content of which was always intended to be clear and direct, in that it expressed the client's instruction to formalise a specific claim and even, frequently, the financial claim, when this was clear or already quantified.

From now on, this prior claim must meet certain requirements in order to comply with the legal precept, as this regulation introduces the notion of the “abuse of the public service of justice”.” as an attitude incompatible with its sustainability, as configured within the rules of procedural good faith to sanction the litigant who has unjustifiably refused to resort to an appropriate means of dispute resolution, when this is mandatory.

A final section is thus introduced in Article 264 of the Civil Procedure Act, establishing that the claim must be accompanied by the document accrediting that the negotiation activity prior to the judicial process has been attempted when the law requires such an attempt as a procedural requirement. Likewise, and for the same purpose, section 399, section 3, on the content of the claim, and section 2 of article 403 of the same law on its inadmissibility, if this procedural requirement is lacking, are modified.

With the introduction of these mandatory measures, the legislator appeals to the maxim of the Enlightenment and the codification process, as stated in the Explanatory Memorandum of the law: “.“that before entering the temple of justice, one must pass through the temple of harmony”.

We find the definition of “ADR” in Article 2 of the new Law:

Concept and characterisation of appropriate means of non-jurisdictional dispute resolution:

For the purposes of this Act, an appropriate means of dispute settlement means any kind of negotiating activity, recognised in this or other national or regional laws, to which the parties to a dispute go in good faith with a view to finding an out-of-court solution to the dispute, either on their own or with the intervention of a neutral third party..

In order to meet this requirement, the rule provides for different options: mediation, conciliation or neutral opinion of an independent expert, if a confidential binding offer is made. In addition, good faith in finding an out-of-court settlement will also be deemed to be proven if any other type of negotiating activity, recognised in law, is used, which seems to open up these options somewhat. Article 5 of the law, after listing these measures, introduces the cases in which the parties have resorted to a “collaborative law” process.

Referring again to the Explanatory Memorandum of the Law, which always provides a better understanding of the legislator's purpose, “Collaborative law” is defined as a means of facilitating structured negotiation between the parties, assisted by their respective lawyers, although it allows, “in a natural and organic way”.”, The integration of neutral third party experts into the team. Its fundamental principles are, or should be: good faith, negotiation of interests, transparency, confidentiality, teamwork and the renunciation to go to court by the professionals who have intervened in the process, in the event of not achieving a total or partial solution to the controversy. This means that the lawyer who undertakes this prior negotiation is invalidated to represent his client in a subsequent lawsuit.

It may be true that Collaborative Law is successfully applied in other countries around us, since the law alludes to the fact that it is a sufficiently contrasted means at international level. However, in Spain, it is common for the lawyer who defends and tries hard to reach an out-of-court settlement to be the same one who later files the lawsuit, when a settlement has not been possible, without his professionalism being criticised or being considered disqualified for the legal management of the lawsuit because he is incompatible, as this prior conciliation has not been successful. We do not know whether this will result in many professionals preferring to support their client and assist them directly in a trial, rather than attempt a prior negotiation that could result in losing control over the outcome of the possible lawsuit.

In any case, all these means, be it Negotiation, Mediation, Conciliation, Confidential Binding Offer, Independent Expert Opinion or “Collaborative Law” have in common: their confidential nature, the identity between the negotiation and the object of the litigation, the interruption of the statute of limitations and the suspension of time limits for the expiry of actions.

It only remains to be seen how these measures will be applied in practice and how the procedural requirement will be interpreted by the courts.