MASC: Appropriate means of dispute resolution

What is MASC? 

Appropriate Means of Dispute Resolution, also known as MASC (Medios Adecuados para la Solución de Controversias), refer to any type of negotiation effort, recognised by national or regional legal regulations, in which the parties to a conflict engage in good faith to reach an out-of-court agreement or solution, either between themselves or with the involvement of a neutral third party.

What types of ADR methods exist?

Current legislation provides for the following types

1. Mediation through a certified mediator.

2. Conciliation, either:

a. Private.

b. Before a Notary.

c. Before a Property Registrar.

d. Before a Court Clerk.

e. Before a Justice of the Peace.

3. A neutral opinion from an independent expert, such as an industrial engineer, Civil Engineer, Technical Architect, Agricultural Engineer, etc.

4. Confidential binding offer (legal counsel is required if the amount involved exceeds €2,000).

5. In particular, the requirement will be considered fulfilled when the negotiation effort is conducted directly by the parties, or between their lawyers, under their direction and with their consent,

6. as part of a collaborative law process, with a lawyer qualified in collaborative law. 

Can I file a lawsuit without first attempting an ADR method?

As a general rule, attempting an appropriate means of dispute resolution is a prerequisite for the admissibility of a lawsuit.

Therefore, in civil and commercial matters, Court Clerks (known in Spain as Letrados de la Administración de Justicia) will not admit a lawsuit unless it can be proven that the plaintiff has previously attempted an ADR method.

Hence, before going to court, a document must be attached to the complaint confirming that the parties either reached a partial agreement or failed to reach any agreement. 

Additionally, the law establishes specific timeframes to carry out the ADR procedure, which will determine when a lawsuit can be filed if no agreement is reached.  You can find these timeframes in Section 5. 

How do I prove that I attempted ADR?

To demonstrate that a prior negotiation attempt has been made and to fulfil the admissibility requirement, the negotiation or attempt thereof must be documented.

• If no neutral third party was involved, proof may be provided through any document signed by both parties, stating the identity of the participants.
• If independent third parties, professionals, or experts were involved in advising the parties, the document must include: the start date of the dispute and its subject matter, the date(s) of any meeting(s) held, and a signed declaration stating that both parties participated in the process in good faith.
• Alternatively, an attempt to negotiate may also be proven with any document showing that the other party received a request or invitation to negotiate or, where applicable, a specific proposal. The document should include the date and proof that the party had full access to its content.

If a neutral third party facilitated the negotiation, they must, upon request by either party, issue a document containing the following information:

a) The identity of the third party, their qualifications, professional association, affiliated institution, or registry.

b) The identity of the parties.

c) The subject matter of the dispute.

d) The date(s) of any meeting(s) held.

e) A solemn declaration that both parties acted in good faith, in order for the document to be valid before the relevant judicial authority.

If one of the parties did not attend or declined the invitation to participate in the negotiation effort, this must be recorded, along with the method used for effective notification, proof that it was made, and the date it was received.

When is the negotiation process considered to have ended without an agreement?Quan es considera que s'ha produït la terminació del procés sense acord?

In the following cases:

a) If 30 calendar days have passed since the other party received the initial negotiation request and no first meeting or contact has taken place with the aim of reaching an agreement, or no written response was received.

b) If, once negotiations have started, 30 days have passed since one party made a specific proposal, and no agreement was reached nor any written response received. This 30-day period begins on the date the specific proposal was received.

c) If three months have passed since the first meeting without an agreement being reached. Nevertheless, the parties have the right to continue the negotiation efforts beyond the aforementioned deadline, provided they do so by mutual agreement.

d) If either party notifies the other in writing that the negotiations are considered terminated, with proof of the attempt to communicate this decision.

How can I submit an ADR proposal to Endesa?

Endesa provides the following email address where you can send your ADR proposal: masc_ase_jurid_cont_comer@enel.com.