With the recent approval of Organic Law 1/2025, of 2 January, on measures for the efficiency of the Public Justice Service, significant changes have been introduced in civil proceedings in Spain. One of the most important aspects of this reform is the promotion of negotiation through the various Appropriate Means of Dispute Resolution (ADR) as a prerequisite for resorting to traditional judicial channels. In this way, the new regulation introduces important new features in the out-of-court settlement of disputes with the aim of speeding up procedures and reducing the overload on the courts.
How to resolve consumer disputes?
- Alternative Dispute Resolution (ADR):
Appropriate Means of Dispute Resolution (MASC Spanish acronym).
Necessary to go to court, except for the exceptions provided for by law such as in the European Small Claims Procedure.
Arbitration
Binding arbitration award, easily enforceable and with the same validity as a court judgement.
An out-of-court system for resolving disputes between consumers and users and business people or professionals, without special formalities, binding and enforceable for both parties. The parties voluntarily entrust an arbitration body -which acts impartially, independently and confidentially- with the decision on the controversy or conflict that has arisen between them.
Arbitral awards have the same validity as a court judgement. Matters settled by arbitration may not subsequently be judged by the courts.
Resolves consumer complaints as long as the dispute does not involve intoxication, injury or death or there is prima facie evidence of a criminal offence.
Without the possibility of resorting to judicial proceedings at a later stage.
Regulated by Royal Decree 713/2024.
- Courts of Justice:
In order to go to court, with the exceptions provided for by law, it will be necessary to have used any of the means of MASC negotiation.
European Small Claims Procedure
Do I have to go to an MASC before using the European Small Claims Procedure? No.
This is an exception, so you can use this court procedure (European Small Claims Procedure) without first having to go to an MASC procedure.
What is MASC?
These are the various mechanisms that use any form of negotiation to settle disputes. The aim of MASC is to reach efficient, confidential and satisfactory solutions for all parties, avoiding lengthy and costly court proceedings. In the event of failure to reach a solution through ADR, a court action may be brought.
MASC NEGOTIATION MECHANISMS:
Mediation.
Two or more parties voluntarily attempt to reach an agreement on their own with the intervention of a mediator. The duration of mediation may not exceed three months from the receipt of the request by the mediator. The mediation agreement is submitted by either of the parties before a notary, accompanied by a copy of the minutes of the constitutive and final session of the procedure, without the presence of the mediator being necessary.
- Conciliation.
An expert (conciliator) with technical or legal knowledge related to the matter in dispute helps the parties to reach an agreement, making proposals that can end the dispute. The conciliation can be public or private.
Public conciliation.
-Conciliation before the notary, in accordance with the Notary Act.
-Conciliation before the registrar, in accordance with the Mortgage Act.
-Conciliation before the legal adviser of the Administration of Justice, in accordance with the law of Voluntary Jurisdiction.
-Conciliation before the justice of the peace in matters of less than 10,000 euros.
Private conciliation.
A person with technical or legal expertise related to the matter in question is called in to negotiate between the parties and reach a conciliatory agreement.
- Direct negotiation between the parties (The direct negotiation can be carried out with or without a lawyer).
Confidential binding offer (without the need for a lawyer for disputes up to 2,000 euros or when so stipulated in a sectoral law). If a lawyer is not necessary, but the consumer would like his assistance, he must indicate this in the request or within 3 days of receipt of the proposal. Any person making a confidential binding offer to the other party is bound by the commitment once the party to whom it is addressed expressly accepts it. Such acceptance shall be irrevocable.
- Independent expert opinion.
The parties may by mutual agreement appoint an independent expert person to give a non-binding opinion on the dispute. The parties are obliged to provide the expert with all information and evidence available to them on the dispute. They shall have a period of ten working days from its communication to make recommendations, observations or proposals for improvement in order to accept the opinion proposed by the expert. If accepted by all parties, the agreement shall be binding.
- Collaborative law.
The parties try to reach agreements in good faith in order to reach a consensual solution to the conflict. Collaborative law may be done - either directly or with the intervention of a neutral third party - accompanied and advised by a professional lawyer, and with the intervention, where appropriate, of neutral third parties who are experts in the matters at issue in the dispute. This is a very widespread practice in the area of family disputes, although it is also increasingly being developed in other areas such as consumption (civil and commercial law), and even in the field of employment.
CHARACTERISTICS OF THE MASC
Scope of application
MASC will be used - among other matters - for consumer disputes (civil and commercial matters), both domestic and cross-border, provided that one of the parties is domiciled in Spain and the negotiation takes place in Spain.
When the agreement is to be executed in another State, in addition to the notarisation, it will be necessary to comply with the requirements of international conventions to which Spain is a party and EU rules.
Litigation in the fields of criminal, labour and insolvency law, as well as litigation involving the public sector, are excluded from MASC.
Pre-litigation obligation
The new law provides, with certain exceptions, for the need to have recourse to MASC before filing a lawsuit in most civil proceedings.
Confidentiality and Formalisation
The proceedings are confidential and the agreements reached may be formalised in a public deed or be judicially approved in order to make them enforceable. The costs of executing the deeds will be paid as agreed by the parties.
The agreement shall be formalised in a document stating the identity of the parties, the lawyers and the neutral third party involved; the place and date of its conclusion; the obligations assumed by each party; and the fact that a negotiation procedure has been followed in accordance with the regulations. The parties shall have the right to obtain a copy and to have the agreement executed in a public deed.
If required by law or if the agreement has been reached in a negotiation process to which the court has referred it in court proceedings, the parties may apply to the court for homologation.
Use of telematic means
The use of digital tools for the development of negotiation processes is facilitated, especially in claims not exceeding 600 euros, except when the use of telematic means is not possible for any of the parties.
Time limits for terminating the process of negotiation of a consumer dispute without an agreement
- 30 calendar days from the date of receipt of the initial request and the first meeting or contact to reach an agreement is not held or no written response is obtained.
- If, once the negotiating activity has begun, 30 days elapse after one of the parties makes a concrete proposal of agreement to the other, without an agreement being reached or a written response being obtained.
- 3 months from the date of the first meeting without an agreement having been reached. However, the parties have the right to continue negotiating by mutual agreement beyond this period.
- If either party writes to the other party to terminate the negotiations, the attempt to communicate the termination of the negotiations shall be recorded if the other party so wishes.
Validity and effectiveness of the agreement
- The agreement may cover part or all of the matters subject to negotiation.
- The agreement reached shall be binding on the parties.
- No action may be brought for the same purpose. The agreement is res judicata for the parties.
- In order to be enforceable, the agreement must be formally registered in a public deed. To this end, one of the parties may request the other party to convert the agreement into a public deed and, if the requested party does not comply with this request, this may be done unilaterally by means of a notary, recording this circumstance. The neutral third party is not required to be present at the execution of the deed. The agreement may also be judicially homologated when appropriate.
ADVANTAGES OF MASC
More agile and flexible than the judicial procedure.
Economical.
Quicker process.
Control of process and outcome.
Based on collaboration rather than confrontation.
Effective. The agreement reached is always binding on the parties.
You should know...
In cases in which the consumer is entitled to free legal aid, the fees of the professionals will be covered by this right.
If a neutral third party intervenes, the cost of which is not assumed by the competent administration, the payment of their fees must be agreed in advance by the parties.
If the parties propose to go to a MASC and there is no agreement on the means to be used, the one proposed in advance will be used.
In claims for the refund of amounts unduly paid by the consumer in certain floor clauses or other abusive clauses in loan or credit contracts secured with a real estate mortgage, a prior out-of-court claim against the company will be necessary.
Source of information
>>Ministry of the Presidency, Justice and Relations with the Courts.
>>Organic Law 1/2025, of 2 January, on measures for the efficiency of the Public Justice Service.