Extrajudicial Resolution of Conflicts before a Notary

The year 2025 begins with an important legislative novelty: the Organic Law 1/2025, of 2 January (BOE-A-2025-76), on measures regarding the efficiency of the Public Justice Service, whose main objective is to modernise the Administration of Justice, increase its efficiency and streamline procedures. It is no secret that judicial congestion, resulting from the large volume of work handled by the courts, has been one of the main problems in Spain. With this new law, the legislator seeks to reduce litigation and encourage extrajudicial conflict resolution before resorting to the courts.

This regulation introduces two major reforms:

1. Reorganisation of Justice through the elimination of single-judge courts and the creation of Instance Courts, a system in which all judges within a certain territorial scope are integrated into a single collegiate body, supported by common services.
2. Establishment of a requirement of admissibility for the filing of civil or commercial claims, so that, before resorting to the judicial route, the parties must attempt extrajudicial negotiation through the so-called appropriate dispute resolution methods (ADR).

Thus, the Organic Law 1/2025 not only modifies other previous regulations, but also strengthens the role of institutions such as Notaries and Registrars, encouraging citizens to resort to alternative means that allow disputes to be resolved in a more agile and effective manner. For this reason, from now on, extrajudicial conflict resolution before a Notary will be possible.

One of the main innovations of this law, from the point of view of the judicial procedure and the intervention of Notaries and Registrars, is the so-called extrajudicial resolution of conflicts, implemented through the appropriate means of dispute resolution or MASC, also known as ADR (Alternative Dispute Resolution).

According to article 2 of L.O. 1/2025, MASC are defined as "any type of negotiating activity, recognised in this or other laws, national or regional, to which the parties to a conflict come in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party".

Until now, mechanisms such as mediation or conciliation were voluntary. However, with the new law, this voluntariness disappears, with ADR mechanisms being established as an essential requirement for the filing of the claim. Anyone intending to sue another party must prove that they have previously attempted to negotiate or conciliate the dispute through one of the channels provided by the regulation, for example, seeking extrajudicial resolution before a Notary or Registrar.

Furthermore, Law 1/2025 introduces a section 4 in article 264 of the LEC, relating to the documents that must accompany the claim or its response. This provision now includes “the document proving that an attempt at negotiation prior to judicial proceedings has been made when the law requires such an attempt as a prerequisite, or a responsible declaration by the party regarding the impossibility of carrying out the negotiation prior to judicial proceedings due to not knowing the address of the defendant or the means by which they can be served”.

From all the above, it follows that, to file the claim, it will be necessary to have attempted to resolve the dispute through an ADR mechanism, or, if such an attempt is not even possible (for example, due to being unable to contact the other party), to accompany the claim with the corresponding responsible declaration. Likewise, the claim must be submitted within one year from the end of the negotiation process or from when the request for negotiation was received from the opposing party without initiating said process.

Obviously, if the dispute is resolved through the ADR mechanism, it will not be necessary to file the claim, thus avoiding the opening of judicial proceedings and helping to unclog the courts.

The MASC provided for in the Law are not a closed list, since, according to article 5, all those that conform to the definition in article 2 are considered valid. However, it expressly mentions the following:

• Mediation
• Conciliation
• The neutral opinion of an independent expert
• The confidential binding offer
• Any other type of negotiating activity, recognised in this or other laws, national or regional, that complies with the provisions in sections 1.ª and 2.ª

The scope of application of these means of conflict resolution is limited to the civil and commercial fields, including cross-border conflicts. However, in civil matters, the following issues are expressly excluded, among others:

• The civil judicial protection of fundamental rights
• The adoption of the measures provided for in article 158 of the Civil Code
• The adoption of judicial measures to support persons with disabilities
• Filial relationship, paternity and maternity
• The summary protection of the custody or possession of a thing or right
• The claim for demolition or tearing down of works in a state of ruin that threaten to cause damage
• The admission of minors with behavioural problems to specific protection centres or the return of minors in cases of international abduction

Likewise, conflicts of a criminal, labour or insolvency nature are excluded, as well as those in which one of the parties is an entity belonging to the public sector (pending future specific regulation for the Administration).

The Organic Law 1/2025 recognises a greater role for Registrars and Notaries in the resolution of extrajudicial conflicts. The notarial intervention in conflict resolution is especially determined through three means of intervention:

In the field of conflict resolution, when the parties reach a solution to their dispute, the figure of the Notary becomes particularly important. The agreements reached may be formalised in a public deed, provided that the Notary verifies that they meet the requirements set out in the law and that their content complies with the law. Otherwise, the Notary may refuse to formalise the said agreement in a public deed.

This formalisation in a public deed gives the agreement enforceable force, in case one of the parties fails to comply with their obligations. Furthermore, as we explain below, the formalisation of agreements in a public deed has tax benefits in the IRPF.

Such formalisation in a public deed, regulated in article 12, shall be granted by the interested parties without the need for the presence of the neutral third party who intervened in the MASC. Likewise, the parties may compel each other to formalise the agreement in a public deed; however, if one of them refuses, the requesting party may formalise it unilaterally, thus formalising the agreement with legal validity and effectiveness.

This instrument allows the parties to appear before a Notary, a public official expert in Private Law, to attempt an amicable solution. In this case, subject to the provisions and regulations of the Notarial Law, specifically in articles 81 to 83. Some advantages of notarial conciliation are:

• The Notary can propose settlement options based on their legal knowledge.
• In case of agreement, this would be elevated to a public deed, endowed with executive effectiveness.
• It demonstrates the seriousness of the claim and may influence, later on, matters of costs if the case is eventually taken to court and the proposed agreement is similar to that established in the judgment.

Private conciliation, regulated in article 15 of Law 1/2025, is presented as one of the most notable innovations of the reform, allowing any natural or legal person with knowledge in the field (for example, lawyers, solicitors, social graduates, economists, notaries or registrars registered in their professional associations), as well as mediators or accredited mediation institutions, to carry out conciliation tasks independently of the public conciliatory function.

Its key points are:

• The impartiality, confidentiality and professional secrecy of the conciliator.
• The possibility that the assignment is made unilaterally or by mutual agreement.
• The need to clearly indicate the object of the conciliation and the contact details of the other party (telephone, email, etc.), including the means available for virtual meetings if applicable.
• The express acceptance by the conciliator, who will assume their functions with loyalty, objectivity, neutrality and impartiality, being subject to the applicable responsibilities.

Regarding notaries and registrars, this private conciliation expands their scope of intervention beyond the public function regulated by the Mortgage Legislation (LH) or the Notarial Law (LN), as it is not subject to the usual competence limitations or specific matters. Thus, the role of the Notary in extrajudicial dispute resolution covers a greater number of cases that may arise.

From the registry perspective, article 103 bis of the Mortgage Law is amended to recognise executive effectiveness to the certifications issued by the Registrar following the holding of the conciliation act. Likewise, according to the provisions of title IV bis of the Mortgage Law, such conciliation may also be carried out before the Registrar.

It is worth noting that the preventive annotation of the mediation request of a MASC may be requested, which represents an important novelty when it comes to assets or agreements susceptible to registration in the Property Registry, the Commercial Registry or the Movable Property Registry.

Finally, in accordance with the provisions of article 8 of Law 1/2025, MASC may be carried out by videoconference in online notary services, provided that the identity of the participants is guaranteed. It is foreseen that, preferably, this means will be used when the claim for payment does not exceed €600, which is in perfect relation with the possibility of granting electronic deeds according to Law 11/2023, of 8 May. In this way, the public deed of conciliation or its elevation by videoconference through the notarial portal could be extended.

In conflict resolution, the important thing is not only to reach an agreement or repair the damages caused or civil liability, but also to adjust the taxation of the compensation obtained. Organic Law 1/2025 has not been unaware of this aspect, and has amended Law 35/2006, of 28 November, specifically its article 7, declaring exempt the income obtained “when derived from a mediation agreement or any other appropriate means of dispute resolution legally established, provided that a neutral third party has intervened in obtaining the agreement by that means and the agreement has been formalised in a public deed”.

Before concluding this article, we would like to point out two modifications introduced by the Law, apart from the extrajudicial conflict resolution in notary offices mentioned above.

The Law 1/2000, of 7 January, on Civil Procedure (BOE-A-2000-323) is amended regarding the enforcement and auction of the primary residence. Under the new regulation, the property will not be awarded for less than 70% of its auction value, unless the award is made for the amount owed to the enforcing party in all respects. In that case, the sale of the property cannot be approved for less than 60% of that value.

In matters of horizontal property, article 7 of Law 49/1960, of 21 July (BOE-A-1960-10906), is amended, adding a third paragraph regarding tourist apartments, for the implementation of which the express approval of the community of owners will be necessary.

According to the thirty-eighth final provision, the Organic Law 1/2025, of 2 January, will come into force three months after its publication in the Official State Gazette (BOE), that is, on 3 April 2025. However, there are a series of reforms that will come into force within the ordinary period of 20 days from its publication, among them Title I, which regulates the modification of the Organic Law of the Judiciary and the structure and jurisdiction of the different courts.

Consequently, the procedures that will be affected will be those which, according to the ninth transitional provision, are initiated from the date of its entry into force, with two exceptions:

1. The reform may be applied and submitted to any means of dispute resolution in procedures initiated beforehand, provided the parties so agree; in such cases, article 19.5 will be of immediate application.
2. It will be applicable to summary proceedings in process that have not held a hearing at the time the law comes into force, being able to adopt the modifications introduced in paragraphs 3 and 4 of article 2010 of the Law of Civil Procedure.

In short, Organic Law 1/2025 marks a turning point in the Spanish Justice landscape. By combining the reorganisation of the courts with the obligation to resort to appropriate means of dispute resolution (ADR), the legislator seeks to relieve the courts and offer faster and more effective ways to resolve conflicts.

Notaries and Registrars acquire a special role, both in conciliation and in the formalisation in a public deed of agreements, strengthening the guarantees for the parties and promoting legal certainty. Furthermore, the phased entry into force and the amendments introduced in regulations such as the or the demonstrate the broad scope of this reform, which aims to modernise and streamline the functioning of the Administration of Justice for the benefit of all citizens.