03 Mar Two Concerns Regarding ADR
Two Concerns Regarding ADR: Binding Offers and Mediation Involving Minors
March 3, 2026
The entry into force of Organic Law 1/2025, on measures concerning the efficiency of the Public Justice Service, has opened a debate on the scope, nature, and internal coherence of the so-called appropriate means of dispute resolution (ADR). The regulation introduces, as a procedural admissibility requirement in numerous civil and commercial matters, the need to demonstrate a prior attempt at out-of-court resolution before bringing a case before the courts. The declared purpose is clear: to promote a culture of agreement, reduce litigation, and relieve pressure on the judicial system.
As a conflict mediator, I fully share that objective. Twenty-first-century justice cannot rely exclusively on judicial response. However, within the current regulatory development, I identify two issues which, from a professional and conceptual perspective, deserve a balanced reflection: the consideration of the confidential binding offer as an ADR mechanism in its own right, and the growing tendency to question or limit mediation when minors are involved in family disputes.
The binding offer is regulated under Article 17 of Organic Law 1/2025 as one of the mechanisms that allows parties to demonstrate an attempt at out-of-court resolution. It is a formal proposal which, if accepted, generates binding obligations for the party making it. From a practical standpoint, its usefulness is undeniable. It may facilitate swift agreements in disputes of an essentially economic nature, reduce procedural costs, and provide an efficient resolution to quantifiable controversies.
However, a different question is whether, conceptually, it can be equated with what is traditionally understood as an appropriate means of dispute resolution. Mediation, structured conciliation, or collaborative law are based on a dialogical process in which a neutral third party facilitates communication, explores interests, identifies underlying needs, and helps rebuild a space of mutual understanding between the parties. It is not merely about closing a file, but about managing the conflict in its relational and structural dimension.
The binding offer, by contrast, is essentially a unilateral act. There is no facilitated process. There is no space for communicative reconstruction. The proposal is framed in closed terms, and the other party may accept or reject it. Its logic is transactional. It is a legal closing instrument, not a conflict management procedure.
The doctrine of alternative dispute resolution has traditionally distinguished between assisted self-composition mechanisms—such as mediation—and purely negotiative or transactional techniques. In the former case, the process is oriented toward transforming the conflict and jointly constructing solutions; in the latter, the primary objective is to reach an agreement that ends the dispute. Both tools may be legitimate and useful, but they are not conceptually equivalent.
The risk of equating them without nuance is twofold. On the one hand, it dilutes the distinctive meaning of mediation as a structured conflict management process. On the other hand, the admissibility requirement may become a mere strategic formality prior to filing a lawsuit, devoid of any genuine willingness to engage in dialogue. If the spirit of ADR is to promote a culture of collaborative conflict resolution, it is essential to clearly distinguish between legal closure instruments and authentic mediation processes.
The second issue, perhaps more sensitive, concerns mediation when minors are involved. In the field of family law, a recent initiative has sought to exclude the obligation to resort to ADR when the interests of minors are at stake. This proposal has been promoted by certain professional sectors, particularly the Spanish Association of Family Lawyers, which has publicly expressed concern about the potential delays that a mandatory prior attempt at mediation could generate in matters such as child support, custody, or visitation arrangements.
Following these demands, the Spanish Congress approved a parliamentary initiative aimed at excluding the mandatory nature of ADR in family proceedings involving minors, on the grounds of avoiding delays and ensuring swift judicial decisions in sensitive situations. The declared intention is to protect the best interests of the child.
However, this position also deserves a balanced reflection. The best interests of the child, a guiding principle enshrined in our legal system and in international child protection instruments, does not automatically equate to immediate judicialization. Judicial proceedings are, by definition, adversarial. They polarize positions, assign opposing roles, and delegate the decision to a third party. In prolonged family conflicts, this dynamic may intensify confrontation between parents.
Family mediation, when conducted by properly trained professionals and under appropriate protocols, offers a structured space in which the parties can assume co-responsibility, build agreements tailored to the concrete reality of their children, and reduce the emotional impact of the conflict. Far from jeopardizing the child’s interests, it may strengthen them by fostering more stable and sustainable solutions over time.
Moreover, the right of minors to be heard in matters affecting them forms part of consolidated legal standards. Mediation does not entail exposing the child to a conflictual process; rather, it involves designing listening mechanisms respectful of their age and maturity, where appropriate and always with due safeguards. Broadly excluding mediation in the presence of minors deprives families of a tool that, in many cases, can prevent years of litigation and the chronicization of conflict.
Organic Law 1/2025 represents a significant step forward in consolidating appropriate means of dispute resolution in Spain. Nevertheless, the development of this culture requires conceptual rigor and practical coherence. If we expand the concept of ADR to include purely transactional instruments, we risk emptying mediation of its substantive content as a process. And if we restrict mediation precisely in the areas where dialogue is most necessary, we send a contradictory message about the role we assign to collaborative conflict management.
Mediation is neither a procedural formality prior to filing suit nor an obstacle to be overcome quickly. It is a professionalized space of responsibility, listening, and agreement-building. And when minors are involved, that space becomes even more necessary. Defending mediation means defending the idea that adults should assume responsibility before delegating it to a judge. Defending mediation involving minors means affirming that the best interests of the child are not exhausted in a judicial ruling, but are built—whenever possible—through dialogue and co-responsibility.
A truly modern justice system is not one that judicializes first and engages in dialogue later. It is one that offers dialogue as the primary avenue and reserves imposition for situations in which agreement proves impossible. Preserving mediation, including in family conflicts involving minors, is neither a technical nor a corporate matter: it is a declaration of confidence in people’s capacity to take responsibility for their decisions and to protect, with maturity, the future of their children.
By Daniel Sererols Villalón
Lawyer and Conflict Mediator
Tel. +34 661 463 306
daniel@mediadorconflictos.com