Spain: The new legal landscape of alternative dispute resolution in Spain

 

Abstract:
Organic Law 1/2025 introduces a mandatory pre-litigation Alternative Dispute Resolution (ADR) phase in most civil and commercial disputes in Spain, reshaping procedural timelines and legal strategy. This article explores how a certified letter with proof of content, known as a “burofax”, is widely accepted by courts and considered legally reliable because it serves as a key tool to formalize ADR invitations and demonstrate good faith.

Key words:
Alternative Dispute Resolution
ADR
MASC
Burofax

On April 3, 2025, Organic Law 1/2025 came into force, reshaping how civil and commercial disputes are managed in Spain. Its central aim is to foster a culture of concord, encouraging parties to resolve conflicts through Alternative Dispute Resolution (ADR)—known in Spanish as MASC (Medidas Adecuadas de Solución de Conflictos)—before resorting to litigation.

Mandatory Pre-Judicial ADR

Under the new law, attempting ADR is now compulsory before filing a lawsuit in most civil and commercial matters. For instance, insolvency proceedings, civil protection cases involving fundamental rights, enforcement procedures, and interim measures are exempt.
To comply with the new law, the claimant must formally invite the other party to engage in one of several ADR mechanisms, such as:

Mediation
Conciliation
Negotiation
Confidential Binding Offer
Independent expert opinion
Collaborative Law
Other recognized methods

The invited party has one month to respond. If accepted, the ADR process must be completed within three months. If declined or unsuccessful, the claim may proceed to court.
This requirement introduces a minimum delay of three to four months before litigation can begin, fundamentally altering procedural timelines.
For businesses, this means revising debt recovery protocols to include formal ADR invitations as a precondition to legal action.

Burofax: A Strategic Tool for ADR Compliance

How should the invitation to negotiate or initiate ADR be made?

In Spain, the most common method of demanding payment or initiating formal communication is the burofax, a certified letter sent via Correos (Post Office) or another authorized provider, which provides certified evidence of its content.
A certified burofax with proof of delivery and content is considered a reliable and legally valid communication (comunicación fehaciente), making it an ideal tool to comply with the new ADR invitation requirement.

Why use Burofax?

Widely used and easy to implement
Accepted unanimously by Spanish courts
Certifies content, date, and delivery
Balanced in terms of cost, speed, and legal certainty
Stronger evidentiary value than emails or ordinary letters

Although Organic Law 1/2025 does not explicitly mention the burofax, Article 162 of the Spanish Civil Procedure Act (LEC) and Supreme Court jurisprudence supports its use. It is one of the most practical and recognized methods to prove that a genuine attempt at ADR was made.

When to use Burofax in ADR Contexts:

Monetary claims: to propose mediation or settlement
Commercial or contractual disputes: to document negotiation efforts or submit a Confidential Binding Offer
Claims for architectural or engineering defects: to initiate a collaborative procedure or propose the appointment of an expert.
Family disputes with financial implications: to propose mediation or initiate a negotiation.

Consequences of Delivery Refusal:

The law does not require the recipient to accept a burofax but refusal or failure to collect it is treated as valid notification.
Delivery is attempted twice, with a period of several days allowed for collection.
When undelivered, it is presumed to be the recipient’s responsibility, therefore, legal notification is deemed complete, and the recipient cannot claim ignorance.
If the recipient does not respond or rejects the burofax, the sender can still prove to the court that a real effort was made to initiate ADR.
This point is particularly significant, as attempting an ADR mechanism is a prerequisite for admissibility. Without proof of such an attempt, the claim will be deemed inadmissible.

Looking Ahead: Digital Alternatives:

While burofax remains dominant, the future points toward electronic mediation platforms and certified emails.

Recent rulings indicate that email may be accepted as a valid means of communication, provided that it was expressly stipulated in the contract as the channel between the parties, or the recipient responded to the initial proposal via that medium.

New electronic platforms offer greater immediacy and lower costs via trusted service providers under the EU’s eIDAS Regulation. However, their adoption reminds limited and continues to evolve.

 

For further information, please contact:

Gloria Vinyals, Lawyer

Bufete Maná-Krier-Elvira, Barcelona

e: gv@bmk.es

t: +34 93 4878030

 

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