MASC in the management of mass claims: how to meet the pre-action requirement without turning it into a formal step
The requirement to have recourse beforehand to an appropriate means of dispute resolution, a “medio adecuado de solución de controversias” or MASC, has introduced a new stage in a large part of civil claims. Where hundreds or thousands of case files are being handled, the challenge lies in systematising that negotiation without depriving it of content, while ensuring traceability, control of time limits and analysis of the particular features of each matter.
The introduction of appropriate means of dispute resolution, the Spanish “medios adecuados de solución de controversias” or MASC, as a prerequisite for going to court has significantly altered the preparation of a large part of civil proceedings. Since the reform brought in by the “Ley Orgánica 1/2025” —LO 1/2025— came into force, in many matters it is no longer enough for the relief sought to be legally well founded and for the evidence needed to sustain it to be available. Before filing the claim, an appropriate negotiating effort must have been carried out or attempted, and it must subsequently be possible to evidence that that step took place in relation to the dispute that will ultimately be put before the court.
In an individual matter, this new stage means adding a further decision to the legal strategy. It is necessary to determine what is to be achieved, what real scope there is for negotiating, which mechanism is the most appropriate, what is to be communicated to the other party and how the attempt at a solution is to be documented. Where, instead of a single matter, hundreds or thousands of claims are being handled, the difficulty changes in scale. The problem ceases to be merely how to negotiate a dispute and becomes how to integrate that negotiation, in legal terms, within a system capable of handling a large volume of files without losing individual control of each one.
1.Pre-action negotiation forms part of the strategy
The first temptation may be to regard the MASC as a step that has to be complied with in order to be able to file the claim afterwards. From that standpoint, the solution would appear simple: to prepare a template communication, reproduce it on a mass scale, send it to all the recipients and keep a record of the dispatches. Management of that kind, however, may be efficient from an administrative point of view and inadequate from a legal one.
The pre-action requirement does not consist simply in some communication having taken place between the parties. The negotiating effort must bear a relationship to the dispute that is subsequently to be taken to court. That requires each file to be properly known before the step is automated.
It is not enough to know that there is a debt, an insured event or a claim. It is necessary to determine the legal relationship from which it arises, who the parties with standing are, what the amount is, what documents evidence it, whether there are part payments, earlier claims, contractual issues, limitation problems or any other circumstance capable of altering the legal position of the matter.
A portfolio may contain hundreds of apparently identical files and yet certain differences may prove decisive. In a claim for owners' association charges there may be an issue as to the determination or the documentary support of the debt. In an insurer's recovery claim the third party's liability or the scope of the subrogation may be in dispute. In a civil liability claim there may be a dispute as to the causal link, the very existence of the harm or its quantification.
Volume case management must allow what is common to follow a common process, but must also detect immediately what calls for different treatment.
2.Standardising the process without standardising the dispute
Genuine standardisation does not consist in doing exactly the same thing in every file. It consists in designing in advance a system of rules that makes it possible to know when we can act uniformly and when we must depart from the ordinary procedure.
The receipt of documents, the checking of certain data, the generation of parts of a communication, the evidencing of its dispatch, the recording of replies and the control of time limits can all be standardised. What should not be standardised without prior analysis is the legal decision that determines the content and the purpose of each step.
The existence of different forms of negotiation confirms this idea. Not every dispute calls for the same approach. A clear and documented monetary claim may lend itself to simple, direct negotiation. A question of technical liability may require an exchange of information or an expert assessment before there is any real scope for reaching a solution. In other matters it may be appropriate to put forward a specific proposal capable of settling the dispute once and for all.
The tool must be chosen according to the problem and not simply because it is the easiest to apply on a large scale.
This need to adapt the instrument does not preclude working with common procedures. It is precisely volume case management that makes it possible to establish different categories of matters and to assign to each of them a previously defined route. There may be one group of files in which the debt is perfectly documented and no objection is known to exist, another in which there is a disagreement as to the amount and a third which raises a legal or technical question requiring individual analysis.
What matters is that the classification should respond to legal criteria and not solely to administrative ones.
3.Traceability and control of time limits
Evidencing the attempt at negotiation becomes particularly important where there is volume. In a single file it may be relatively straightforward to locate, months later, the demand that was sent, the proof of receipt and the other party's reply. In a portfolio of several thousand matters, relying on that manual reconstruction is an unnecessary source of cost and risk.
Each file should keep, in structured form, what communication was made, when, to whom, on what subject matter, by what means and with what result. Traceability then ceases to be a purely organisational question. It forms part of the legal certainty of the procedure itself.
If a claim ultimately has to be filed, the lawyer needs to know that the pre-action stage took place in relation to that particular matter and to have immediately to hand the material needed to evidence it. Volume case management must be designed to produce that evidence naturally, not to reconstruct it once the proceedings are already prepared for filing.
Control of time limits is equally essential. The opening and the conclusion of the negotiation may have effects on limitation and on time bars and also determine the moment at which certain decisions must be taken. Where there are few matters, the lawyer can monitor those dates manually. Where there are hundreds or thousands, the system must automatically record the relevant milestones and generate the alerts needed to prevent a file from coming to a standstill or a step from being taken at the wrong time.
Technology makes it possible to resolve a large part of this difficulty. It can calculate dates, generate alerts, record attempts at communication, link each document to its file and classify certain replies. But technology does not decide on its own what legal significance a reply has.
4.Managing the replies, not just the demands
A refusal may be merely formal or may reveal a genuine problem of standing. A proposal for part payment may be economically attractive or legally insufficient. Documents produced by the other party may change nothing or may completely alter the initial assessment of the file.
For that reason, one of the most important parts of volume management lies not in sending out the claims but in receiving and dealing with the replies. A well-designed system must be capable of distinguishing ordinary replies from those that contain a significant issue and require professional review.
The aim is not that a lawyer should read every communication manually when many of them are repetitive and can be classified safely. The aim is to ensure that no reply capable of altering the strategy goes unnoticed.
Pre-action negotiation may also yield particularly valuable information when the portfolio is looked at as a whole. If numerous recipients raise the same objection, we may not be dealing with a succession of individual issues. There may be a structural question in the documents, in the contract from which the claims arise or in the legal judgement that has been applied.
This information may alter the general strategy. It may be appropriate to change the content of future communications, to obtain additional documents before going further, to differentiate between certain types of file or to review the criterion applied to matters that have not yet reached the court stage.
The opposite phenomenon may also occur. An apparently homogeneous portfolio may reveal, in the course of the negotiation, that a small percentage of files needs clearly different treatment. The value of a well-designed system lies precisely in identifying those exceptions and directing the lawyer's attention to them.
5.What a portfolio can learn from negotiation
Scale generates complexity, but it also generates knowledge if the information is recorded and analysed properly. The replies received make it possible to know what arguments the other party uses, which issues arise most frequently, in which matters there is real room to negotiate and which categories present the greatest difficulties.
That knowledge can be carried over to files not yet started. The first replies may make it possible to improve the demands that follow. The first agreements may help to determine where there is genuine room for negotiation. The first objections may show what documents need to be strengthened before going further.
In this way, the MASC ceases to be an isolated step within each file and becomes part of a portfolio strategy. The information obtained in one matter may improve the handling of the others, provided that there is a system capable of gathering it, analysing it and feeding it into the general criterion applied.
The confidentiality inherent in negotiation likewise calls for a distinction between what must be recorded in order to evidence the step taken and what must not subsequently be carried over into the proceedings. Traceability does not mean indiscriminately putting the entire content of the discussions into a future court file. It means being able to reconstruct what was done, when it was done and in relation to which dispute, while at the same time complying with the legal regime applicable to communications made during that stage.
There is also an economic dimension. One of the objectives of well-structured volume management must be to prevent the cost of complying with the pre-action stage from rendering the claim itself inefficient. If every file requires identical steps to be reproduced manually, certain small and medium-value claims may cease to make economic sense.
This is particularly relevant in recurring claims. Insurance companies may handle substantial recovery portfolios. Managing agents may need to pursue numerous claims for owners' association charges. Certain business activities may generate high volumes of liability claims. In all these fields, the negotiating stage must be integrated within a methodology capable of working with volume and not simply added as a further cost to each file.
But economic efficiency must not lead to a fictitious negotiation. If the pre-action stage is confined to obtaining a document that allows a claim to be filed, much of its usefulness is lost. A well-framed claim may obtain a payment, clarify a position, reveal an issue or make it possible to reach an agreement. Even where it does not avoid the proceedings, it may improve the preparation of the litigation because it anticipates what some of the other party's defences are likely to be.
Volume legal case management therefore calls for a combination of technology, organisation and legal judgement. Technology makes it possible to work with a large volume of files and to control repetitive steps. Organisation makes it possible to maintain traceability and to prevent matters from getting lost within the scale of the operation. And legal knowledge determines what is claimed, which mechanism is appropriate, which reply alters the strategy and when the dispute must finally be put before the courts.
The objective is not to comply with a pre-action requirement thousands of times over. It is to design a system that makes it possible to comply with it properly in every file and to use that stage to decide which matters can be resolved, which need a different strategy and which must go on to court proceedings.
