What types of “MASC” (appropriate dispute resolution methods) are there?

Question

José Manuel Alburquerque · Accepted Answer

The law accepts any negotiation activity carried out in good faith to seek a solution without a judge, by the parties themselves or with the help of a neutral third party. The most common are direct negotiation, between the parties or between their lawyers, mediation and conciliation. The law also regulates the confidential binding offer, independent expert opinion and collaborative law. Methods recognised by other laws, whether national or regional, such as the Catalan mediation act, are also valid. Any of them meets the requirement that applies before suing, provided that it is attempted before the claim is filed and concerns the same matter as the later claim. Without a third party The parties can try to reach an agreement by themselves, without anyone acting as an intermediary. They can do so in three ways: Direct negotiation, between the parties or between their lawyers. A written invitation to negotiate stating what it is about is enough. It is the simplest and has no cost of its own. The confidential binding offer. One party makes the other a specific proposal that binds the party making it if the other accepts it. As it is confidential, the claim is accompanied by proof that it was sent and received, without revealing what it said. Collaborative law, a negotiation in which each party is assisted by a lawyer trained in this technique and everyone works together to reach an agreement. With a neutral third party At other times an impartial person is involved, who does not decide for the parties but helps them in various ways: Mediation. A mediator helps the parties to talk and to find a solution themselves, without imposing one on them. It is governed by the Spanish mediation act and, in Catalonia, also by the Catalan act. Conciliation. A third party tries to get the parties to agree and may propose solutions to them. It can take place before a notary, a land registrar, the court clerk (“letrado de la Administración de Justicia”), the justice of the peace or a private conciliator. Independent expert opinion. The parties jointly commission an expert in the field, for example an expert witness, to give an opinion on the dispute. It is not binding on them, but it tends to bring their positions closer. Which one to choose The law does not give preference to any of them. In Barcelona, it is a criterion agreed by the civil sections of the “Audiencia Provincial” (the provincial appeal court) that any of them will do, including simple direct negotiation between the parties or between their lawyers. The choice depends above all on the dispute: For a clear and documented debt, a well-drafted invitation to negotiate is usually enough. If the problem is technical, such as defects in building work or a medical injury, an expert's opinion can help to seal the agreement. If there is a relationship worth preserving, such as between shareholders, neighbours or relatives, mediation is usually a better fit. Negotiating directly has no cost of its own, whereas mediation, conciliation before a notary and the expert's opinion do have a cost. If an agreement is reached, it is advisable to put it in writing.