A business owner walks into a law firm with a partner blocking the shareholders’ meeting. He has two options in his head: litigate, or negotiate through lawyers. The third — sitting down with a neutral professional who facilitates an agreement — is not part of his mental universe. It isn’t that he rejects it. It’s that he doesn’t see it.
And what isn’t seen, in practice, doesn’t exist. Freedom of choice requires, as a precondition, knowing the options available. When an alternative is systematically rendered invisible, even if it legally exists, it stops being a real option and becomes a theoretical resource almost nobody turns to. Without visibility there is no possible choice — only inertia dressed up as a decision.
I have spent twenty-five years observing this pattern, and I would venture that it is one of the most consistent features of Spanish legal practice. Until Law 1/2025 on Procedural Efficiency Measures arrived and did something few legislators dare to do: intervene where professional custom had failed, and require legal practitioners to put the alternatives to litigation on the table.
A note on terminology: MASC stands for medios adecuados de solución de controversias — appropriate means of dispute resolution — the category introduced into Spanish procedural law by the 2025 reform.
The landscape before the law
The average business owner facing a serious corporate dispute rarely considers mediation a real option. He considers litigating, or reaching an agreement between lawyers. Litigate or negotiate. Those are the two options that appear in his mind. The third, although it has existed legally for decades, is not part of his universe of possibilities.
And he doesn’t see it for reasons that have little to do with him. His lawyer talks to him about claims and defences because that is the work he knows how to bill for. The media cover judgments, not settlements, because judgments have identifiable protagonists and settlements are, by definition, confidential. The court system is “the normal thing” not because it is the best available option, but because it is the only visible one.
The result is a vast collective inefficiency. Disputes that would take weeks to resolve with the right person mediating between the parties end up in court proceedings lasting three, five or seven years. Along the way, business value is destroyed, recoverable commercial relationships are broken, the parties’ assets are drained by procedural costs, and the administration of justice is saturated with matters that should never have reached it. All because the alternative was never presented as a real option.
What Law 1/2025 does
Against that backdrop, the 2025 procedural reform does something structurally very interesting. It does not prohibit litigation. It does not penalise those who go to court. It simply introduces a prior obligation: before filing most civil and commercial claims, an appropriate means of dispute resolution must have been attempted.
On the face of it this is one more bureaucratic requirement, and that is how many firms are treating it. They send a pro forma certified notice, obtain the record of the attempt, and proceed with the claim as if nothing had changed. The law satisfied on paper, but nothing changed in practice.
Law 1/2025, however, is not merely a formality. Read carefully, it is a structural intervention by the legislator to correct a collective failure of the system. The reform’s implicit reasoning is this: given that the professional legal market is not spontaneously presenting the alternatives to litigation to citizens, the legal order will compel those alternatives to be put on the table. Even if only for an instant. Even if only formally. Because putting an option on the table, even under compulsion, is making it visible. And visible options are sometimes chosen.
The mechanism the law is trying to break
Here it is worth being precise, because the easy reading of the reform is to dismiss it as procedural paternalism. And it isn’t that. It is the recognition that freedom of choice requires, as a precondition, knowing the options available. When the professional ecosystem surrounding the business owner — systematically, and not out of bad faith but out of guild and economic inertia — has concealed from him that alternatives to litigation exist, the only way to restore his real capacity to choose is to force those alternatives to appear.
It is exactly the same mechanism used in other fields to correct informational asymmetries. Mandatory nutritional labelling on food. Mandatory pre-contractual information in financial services. Warnings on hazardous products. In all those cases, the legislator does not oblige anyone to choose a particular option. It obliges the option to exist visibly before the person decides. MASC is that same logic applied to dispute resolution.
What can go wrong, and what is already going wrong
It would be naïve not to acknowledge it. A significant part of how the reform is being applied in its first months is denaturing it entirely. Pro forma certified notices. Generic demands with no real willingness to settle. One-hour mediation sessions whose sole purpose is to obtain the certificate that allows the claim to proceed. All of that is happening, and will probably continue to happen as long as the professional market adapts to the letter of the reform rather than its spirit.
But even in its denatured form, the law is having an effect worth noting. Every time a business owner, however perfunctorily, receives a notice mentioning the possibility of mediating or of turning to an independent expert, an option is being drawn on his mental map that was not there before. Most will ignore it. But some — particularly in disputes where both parties have real incentives to resolve matters quickly — will consider it. And from that will come settlements that without the reform would never have been attempted.
In aggregate terms, that shift matters more than any particular statistic. It is slowly displacing the default social norm about how business disputes are resolved in Spain.
Changing a social norm by legislative means
And this is what makes Law 1/2025 more interesting than most procedural reforms of recent decades. It does not merely change procedures. It is attempting to change a deeply entrenched social norm: the idea that litigation is the normal path and everything else is exceptional. By forcing the structural visibility of the alternatives, the reform is creating the conditions for litigation to become, over time, one of several assessable options rather than the default route.
We do not know whether it will work. Changing a social norm through legislation is a bet with an uncertain outcome. It may be that in ten years the reform is remembered as the moment Spanish commercial law began resolving disputes like Europe’s most efficient legal systems. Or it may be remembered as a well-intentioned experiment devoured by guild inertia. It depends, to a large extent, on whether those of us who operate in this market take the reform seriously or treat it as a formality.
What a small firm can do
A small firm has, in this context, an agility advantage worth using. Not being organised into vertical departments, nor sustaining structures sized for one particular type of work, it can approach each matter without prior constraints and propose to the client, in the first conversation, the route that genuinely fits their situation. Sometimes that will be mediation. Sometimes private conciliation. Sometimes an independent expert determination. And sometimes, quite simply, litigation. But it will be an informed choice, not a reflex.
That is, ultimately, one of the purposes of Alta Mediación. Not merely to be available to mediate, conciliate or issue an opinion when the client asks. To be the voice that presents those options, honestly, before the client knows they are asking for them. Because for twenty-five years I have watched the structural inefficiency of a system in which the alternatives were never named. And I have no wish to contribute to its continuing.
Closing
There will be those who read Law 1/2025 and see only one more formality added to the start of every dispute. There will be those who read it and see an opportunity for procedural gamesmanship with prefabricated notices. And there will be, I hope, those who read it and see what it seems to me to be: the belated but courageous recognition that for decades we have been operating from an edited menu. And the structural attempt, with greater or lesser technical success, to restore to citizens the options that were there all along, but that nobody had named for them.
MASC may not change everything its advocates hoped for. But at the very least it has put the conversation on the table. And once an option becomes visible, it is very hard to hide it again.