To all this may be added the doubt as to whether the omission of submitting in the claim the documentary evidence (art. 399 LEC) that proves the requirement of procedurability is curable. In our view, if a MASC has been attempted prior to filing the claim but the documentation proving it was not attached to the claim, it would indeed be curable; however, if no MASC was attempted, we consider that something omitted from the outset cannot be remedied, especially considering that there would not be enough time within the correction period granted by the court—which is brief—to remedy such omission, taking into account that at least one month must elapse from the start to the end of the negotiation activity.
It should be noted that, in matters of costs, these are left to discretion, which, for us, is the main issue of this Law, as it affects fundamental rights such as knowing the consequences of litigation. Likewise, there is the uncertainty created by the right to confidentiality of negotiations in direct relation to the imposition of costs. It is foreseeable that secondary litigation regarding costs will increase to reduce or avoid this possible condemnation based on these MASCs. It might seem that the Confidential Binding Offer is the “star” MASC to try to avoid repercussions regarding costs, because it does not allow negotiation and the full provisions of art. 394 LEC in connection with art. 7.4 of LO 1/2025 would not apply; however, the lawyer will need to weigh the cost-benefit relationship in each case. It might be advisable to expressly inform the recipient in the Confidential Binding Offer that, if they refuse to respond, there may be judicial repercussions regarding costs, and this is not stated out of mere benevolence but to avoid giving or reducing the recipient’s option to mitigate the costs by claiming ignorance of the consequences of their inaction.
Will there be judges or judicial officers who lift confidentiality under art. 7.4 of LO 1/2025? This could undermine the right to freedom of negotiation and, above all, the confidentiality of communications between legal professionals—a principle that, in our view, must be preserved as sacrosanct. Would a reform of this Law be necessary due to the significant procedural uncertainties it raises? We shall see.
LO 1/2025 represents a paradigm shift, a change in the rules of the game; we will continue learning as its entry into force progresses.
SCOPE OF APPLICATION:
- Civil and commercial matters, excluding insolvency proceedings.
- Cross-border disputes.
- Declaratory judgments under Book II of the Spanish Civil Procedure Law (LEC).
- All special proceedings under Book IV of the LEC.
NO NEGOTIATING ACTIVITY IS REQUIRED IN:
Labor, Criminal, Insolvency, when a civil claim is filed against a public sector entity and in matters not at the disposal of the parties (yes, Articles 102 and 103 CC), also not in matters excluded from mediation under the LOPJ, Fundamental Rights, Voluntary Jurisdiction = Measures of Article 158 CC, in measures supporting persons with disabilities, filiation, paternity and maternity, summary possession guardianship, demolition of unsafe buildings, admission of minors to protection centers, entry into a home and international child abduction, in the bill of exchange proceedings.
Also excluded are executive claims, precautionary measures, preliminary proceedings, voluntary jurisdiction (except for exceptions such as disputes in the exercise of parental authority and judicial intervention in cases of marital disagreement and administration of marital property), European order for payment, and European small claims, of low value.
For the purpose of fulfilling the procedurability requirement to initiate jurisdictional proceedings, and without prejudice to the provisions of Article 5.1 of LO 1/2025, the parties may resort to any of the prior negotiation methods regulated in this Chapter I or to any other appropriate dispute resolution mechanism provided in other state or regional laws, to which the parties in a conflict act in good faith with the aim of finding an out-of-court solution, either on their own or with the intervention of a neutral third party. In particular, the parties may fulfill this requirement through direct negotiation or, if applicable, through their lawyers. And this is important because it might now seem that initiating jurisdictional proceedings will be impossible, and from our humble point of view, this is not the case, since lawyers who practice Family Law always attempt the negotiation route before starting a lawsuit; until now, this was not required by law but by the inherent and sensitive responsibility of the matter; currently, it will be required as a prior condition (the legislator intends to ensure that this minimum activity is indeed attempted, without being able to initiate jurisdictional proceedings until 1 month has passed from the start of the negotiation activity).
| MODALITIES OF PRIOR NEGOTIATION THAT ARE INCLUDED IN ORGANIC LAW 1/2025 OF JANUARY 2, WITHOUT BEING NUMERUS CLAUSUS |
- MEDIATION (Law 5/2012)
- PRIOR CONCILIATION
1/ PRIVATE (lawyer, solicitor, Social Graduate, Economist, Notary, Property Registrars, Other professional associations, professional societies) – (art.15 LO 1/2025)
2/ PUBLIC (LAJ and Justice of the Peace) – (art.14 LO 1/2025)
- CONFIDENTIAL BINDING OFFER (art. 17 LO 1/2025) – without prejudice to stating that the binding offer is not properly a negotiating activity.
- INDEPENDENT EXPERT OPINION (art. 18 LO 1/2025) – Official Title on the subject.
- COLLABORATIVE PROCESS – Parties plus accredited lawyer in collaborative law – (art. 19 LO 1/2025)
For the purposes of proving that a prior negotiation activity has been attempted and to comply with the procedurability requirement, such negotiation activity or attempt must be documented, submitted with the claim, and, in any case, respect the confidentiality of the claim, though not the subject matter of the negotiation.
To all this may be added the doubt as to whether the omission of submitting in the claim the documentary evidence (art. 399 LEC) proving the procedurability requirement is curable. In our view, if a MASC has been attempted prior to filing but the documentation proving it was not attached to the claim, it would be curable; however, if no MASC was attempted, we consider that something omitted from the outset cannot be remedied, especially since there would not be enough time within the correction period granted by the court—which is brief—to remedy such omission, taking into account that at least one month must elapse between the start and end of the negotiation activity.
It should be noted that, regarding costs, these are left to discretion, which, for us, is the major problem of this Law, as it affects fundamental rights such as knowing the consequences of litigation. Likewise, there is the uncertainty generated by the right to confidentiality of negotiations in direct relation to the imposition of costs. It is foreseeable that secondary litigation over costs will increase to reduce or avoid this possible condemnation based on these MASCs. It might seem that the Confidential Binding Offer is the “star” MASC to try to avoid repercussions regarding costs, because it does not allow negotiation and the full provisions of art. 394 LEC in connection with art. 7.4 of LO 1/2025 would not apply; however, the lawyer will need to weigh the cost-benefit relationship in each case. It might be advisable to expressly inform the recipient in the Confidential Binding Offer that, if they refuse to respond, there may be judicial repercussions regarding costs, and this is not stated out of mere benevolence, but to prevent or reduce the recipient’s ability to mitigate the cost award by claiming ignorance as a citizen regarding the consequences of their inaction.
Will there be judges or judicial officers who lift confidentiality under art. 7.4 of LO 1/2025? This could undermine the right to freedom of negotiation and, above all, the confidentiality of communications between legal professionals—a principle that, in our view, must be preserved as sacrosanct. Would a reform of this Law be necessary due to the significant procedural uncertainties it raises? We shall see.
LO 1/2025 represents a paradigm shift, a change in the rules of the game; we will continue learning as its entry into force progresses.