09 Jan Mediation strategies after LO 1/2025
Mediation strategies after LO 1/2025: requirement of procedural admissibility and real practice
Requirement of procedural admissibility and new uses (and abuses) of mediation
If the Organic Law 1/2025 has achieved anything, it is that mediation (as a highlighted ADR mechanism) is now very present in the daily practice of legal professionals, no longer as a voluntary or marginal option, but as a relevant —and in many cases mandatory— prior step before turning to judicial proceedings.
What follows is a reflection drawn from the mediator’s daily practice, based on real situations that I am experiencing with the application of the procedural admissibility requirement under LO 1/2025.
Mediation: from a voluntary alternative to a prior requirement
For years, mediation was presented as a complementary avenue, a recommended tool, an option for those who “wanted to engage in dialogue”.
With LO 1/2025, the scenario changes. Mediation becomes part of the pathway prior to judicial proceedings, which has clear effects: its visibility increases, the number of cases grows, but its original meaning is also put under strain. When something becomes mandatory, it ceases to be neutral. And mediation is no exception.
- Mediation used to gain time (direct experience)
First scenario. Very real. And experienced first-hand.
I am contacted as a mediator.
The invitation to mediation is sent.
The invited party accepts and wants to begin.
But the inviting party never finds the moment to start, once the information session has been held.
There are no dates.
There are no sessions.
There is no process.
In this specific case —which has its irony— the request for mediation was made on 31 July. Since then, the inviting party never specified their availability to initiate the process, despite the fact that the invited party repeatedly expressed their willingness to mediate, which ultimately led me to close the mediation attempt, some time after the information session had taken place.
Here, mediation is used as a delaying tool, not as a genuine space for dialogue. The objective is not to manage the conflict, but to gain time. It was an in-court mediation.
From the outside, it looks like mediation.
From the inside, it is not.
And in quite a few cases, the main interest is not the mediation process itself, but something much more concrete: how much the information session costs and the issuance of the certificate or the record of non-initiation of mediation. In other words, the minimum cost required in order to proceed along the judicial route.
This forces the mediator to take particular care with the initial framing, with clarity about the real scope of the process and with coherence between form and substance.
Put plainly: mediation should not be a strategic pause, but in practice it often ends up being one, both before and during judicial proceedings.
- When mediation is experienced as a formality to “tick the box” (direct experience)
Second scenario, also experienced first-hand and increasingly frequent.
Here, the aim is not so much to gain time as to overcome the procedural admissibility requirement as quickly as possible. Mediation is perceived as an uncomfortable formality that must be dealt with swiftly in order to continue along the judicial path.
The attitude is clear from the outset: there is no genuine willingness to engage in dialogue, no openness to exploring options, no interest in the process.
In practice, mediation is reduced to what is strictly necessary: holding the information session and obtaining the corresponding certificate or record, whether of non-initiation of mediation or of failure to reach an agreement.
Once again, the focus is not on mediation, but on the cost of the information session and the final formalities, the minimum price to “move on to the next level” and continue.
The difference from the previous scenario does not lie in the final objective —complying with the requirement— but in the strategy: in point 1, the process is delayed; here, it is accelerated.
In both cases, mediation is stripped of its nature, and the mediator must reinforce the framing in order not to become a mere manager of certificates.
And yet, sometimes the unexpected happens: a question, an emotion or unforeseen information manages to open a crack. Even when used as a formality, mediation still retains the capacity to unsettle the conflict.
- Mediation within the public administration: when it cannot be done… but something moves (direct experience)
Third scenario, also experienced first-hand, and particularly revealing of the limits and possibilities of mediation.
This concerns a conflict in the field of public healthcare, involving a person affected by poor medical service and with clear elements of medical malpractice. A context in which, legally, mediation is neither предусмотрed nor permitted in a strict sense, as it involves a public administration.
The formal response was the expected one: mediation does not apply, it is not the appropriate channel, and other administrative and contentious mechanisms exist.
Up to this point, there is nothing legally debatable.
And yet, an attempt was made.
Not a formal mediation or a classic procedure, but an intervention inspired by mediative logic: listening, reformulating the conflict and conveying the distress so that someone on the other side would become aware of what had happened.
There was no mediation session.
There was no record of agreement.
There was no procedure as such.
But there was a significant change.
The healthcare professional involved rectified their attitude, reviewed the case and clearly improved their treatment of and response to the affected person. What was essential was corrected: the way of listening, of relating, and of assuming responsibility.
Here, mediation did not function as a method, but as an approach.
It did not resolve the conflict, but it de-escalated it.
It did not produce an agreement, but it generated a real restorative effect.
Sometimes mediation does not enter through the front door, but manages to slip in through a window. And in certain contexts, that is already a great deal.
- Mediation as a preventive strategy (an idea we owe to Carles Garcia Roqueta)
I owe this approach to my reference point, mentor, colleague and friend Carles Garcia Roqueta, who has long been proposing an idea as simple as it is rarely explored in legal practice.
What if, instead of waiting for the conflict to explode in the form of a claim, I anticipate it and activate a mediation myself?
This proposal breaks with the usual logic of judicial conflict, which is almost always based on reaction. Here, one does not wait for the blow, the notification or the initial pleading. One takes the initiative.
Not as an acknowledgment of responsibility.
Not as an act of weakness.
Nor as a waiver of legal defence.
But as a strategy of anticipation.
From this perspective, mediation ceases to be merely a response to an already declared conflict and becomes a preventive tool, capable of cushioning an escalation that is sensed to be imminent, ordering positions before they harden, or at the very least changing the framework from which the confrontation will take place.
With LO 1/2025, this idea takes on even greater meaning. Activating mediation before receiving a claim may have relevant legal and strategic consequences: it brings forward compliance with the procedural admissibility requirement, leaves evidence of a genuine willingness to engage in dialogue and may shape the subsequent narrative of the conflict, even if it ultimately becomes judicialised.
It will not always work.
It will not always avoid litigation.
But it introduces something that is often lacking in judicial conflicts: room for manoeuvre before everything hardens.
Conclusion: defending mediation without idealising it
LO 1/2025 has strengthened the presence of mediation. That is good news. But it also requires us to be demanding.
Mediation is not magic; it does not guarantee agreements, nor does it work for everything.
But it remains a valuable tool, especially when it is used with honesty, professionalism and respect for its essence.
From my experience as a conflict mediator, I clearly support the impetus that this law gives to mediation and ADR mechanisms. Not to replace judicial proceedings —which remain indispensable— but to complement them and, where possible, to avoid them.
Because mediation does not promise results. It promises something more honest: the real possibility of sitting down and trying to understand one another.
Professional contact:
Daniel Sererols Villalón
Conflict mediator and private conciliator
Tel.: +34 661 463 306
Email: daniel@mediadorconflictos.com