Spanish court decisions on alternative dispute resolution consolidate flexible and guarantee-based criterion

The court decisions on alternative dispute resolution (ADR) issued since the entry into force of Organic Law (LO) 1/2025, of 2 January, on measures relating to the efficiency of the Public Justice Service, allow for an analysis of their most relevant conclusions and their impact on the admission of claims in the civil order in relation to compliance with the admissibility requirement.

Admissibility requirement

It consists of the attempt to negotiate, prior to the filing of a lawsuit, established as a mandatory requirement for its admission, except in the cases expressly exempted by law.

The case law highlights that this requirement is formal in nature and its interpretation must be in accordance with the principle of "pro actione", a legal rule that requires courts to interpret procedural rules in a manner favourable to access to justice.

It is required that there be identity between the object of the negotiation and the object of the litigation, although the claims may vary in court.

The mere extrajudicial claim or request for payment or demand for compliance, together with notice of the subsequent exercise of legal action, does not satisfy the admissibility requirement (AP Barcelona, order 450/2025).

Validity and effectiveness of electronic means

The Provincial Courts (APs) (AP Alicante, order 48/2025; Málaga, order 388/2025; Cádiz, order of 14 October 2025 or; Ávila, order 66/2025) have recognised the full validity and effectiveness of electronic means, such as e-mail, as a communication channel for sending the negotiation proposal and for evidencing the intent, provided that:

• there is express or tacit consent of the parties for its use, either by contractual provision or by repeated use in previous relationships;
• sufficient documentation is provided to identify the sender, the recipient, the date of dispatch and the effective receipt; and
• trust services, qualified or non-qualified, are used to certify delivery and receipt, in accordance with the legislation on electronic trust services and the LEC (AP Cádiz, cited above).

Confidential binding offer

The confidential binding offer, which is one of the ADR methods, must be submitted in such a way as to record the identity of the offeror, the actual receipt by the other party, the date and the content. Case law recalls that the law prohibits mentioning the content of the offer in the demand to preserve confidentiality and ensure that the offer does not have an impact on the final resolution in the proceeding (AP Huelva, order 321/2025; Navarra, order 352/2025; Alicante and Málaga, cited above).

However, the AP Santander, orders no. 199/2025 and 202/2025, is somewhat stricter and requires that the accreditation of the attempt to negotiate includes full access by the counterparty to the content of the proposal, since it understands that its simple submission without record of the content of the invitation to negotiate does not meet the admissibility requirement, as it prevents verification of the identity between the subject matter of the negotiation and the subject matter of the dispute.

It is not required that the offer necessarily involves a reduction or waiver by the creditor nor that an unjustified sacrifice be imposed in order to access the courts (AP Alicante and Navarra, aforementioned orders and Alicante, order 48/2025).

Remedying of defects and the principle of 'pro actione'

Court decisions insist that the inadmissibility of a claim on the grounds of non‑compliance with the admissibility requirement must be exceptional and reasoned, in accordance with the principle "pro actione" and the constitutional doctrine on effective judicial protection (judgment of the TC 163/2016 and AP Alicante, Malaga and Navarra, orders cited above).

The dismissal of claims for remediable defects without giving the opportunity to correct them is rejected, and it is warned that ADR should not become an obstacle course for the litigant (AP Alicante, cited order 48/2025 and Ávila, order cited above).

The correction of defects must be possible as long as it does not cause damage to the regularity of the proceedings or to the position of the opposing party and there is no negligence or contumacy on behalf of the appellant (AP Alicante, cited order 48/2025 and Málaga, cited above).

Exceptions to the admissibility requirement

Case law has confirmed that it is not necessary to prove an attempt at prior negotiation in the mortgage foreclosure proceedings and that the admissibility requirements applicable for declaratory proceedings should not be applied to enforcement proceedings and precautionary measures prior to the claim (AP Navarra, order 373/2025 ).

In the same sense, the AP of Zaragoza, order 206/2025, understands that, in a lawsuit on the challenge of an agreement adopted by the general meeting of a community of property owners that determines the debt maintained by some owners, this admissibility requirement is not necessary, since community agreements are adopted at the meeting of owners after deliberation among its attendees, which is equivalent to a negotiating activity. In short, although the challenge of a community agreement is not excluded from the cases expressly indicated in LO 1/2025, we are dealing with a matter governed by mandatory rules that require the direct participation of the co-owners, and therefore the admissibility requirement cannot be imposed.

Procedural effects of non-compliance with the requirement

Failure to comply with the procedural requirement entails the inadmissibility of the claim, unless the defect can be remedied and a period is granted for it.

Osborne Clarke comment

The most relevant court decisions in the field of ADR following the entry into force of LO 1/2025 have consolidated a flexible and guarantee-based criterion, which prioritises the effectiveness of access to the courts, the correction of formal defects and the adequacy of the means of accreditation to the social reality (electronic means), without losing sight of the purpose of the rule and the exceptions provided for by law.

Before initiating an ADR process, it is essential to seek legal advice to verify that all the requirements of the law are met, since an error in the procedure chosen or in its preparation may lead to the inadmissibility of the claim.