The new 1/2025 Procedural Efficiency Law brings many changes and the one that will undoubtedly mean a before and after is the obligation to go to the so -called MASC as a previous procedural requirement, necessary for the admission of the demand.
The new 1/2025 Procedural Efficiency Law brings many changes and the one that will undoubtedly mean a before and after is the obligation to go to the so -called MASC as a previous procedural requirement, necessary for the admission of the demand.
In this space we are going to focus on one of these adequate methods of conflict resolution, which recognizes as valid the procedural efficiency law: the opinion of an independent expert, and in its application to family law.
The figure is regulated in section 3 of the Law, relative to the different negotiation modalities prior to the jurisdictional route.
Specifically, article 18 raises, among the possibilities that the parties will have, to request the opinion of an “independent expert.”
The objective is that the parties request a kind of non -binding and confidential report, to an expert in the subject subject of the conflict, who will receive the information and evidence on the controversial issue in order to issue this opinion in an informed manner.
The third expert must prove to be in possession of the official titles that allow to contrast the technical knowledge on the subject on which his report will be, and must guarantee -Use promise or oath of telling the truth – that his performance will be guided by the greatest objectivity, taking into consideration both what he can favor and what may harm any of the parties.
Once this opinion is issued, the parties may make recommendations, observations or proposals in order to accept the opinion of the expert as valid for the resolution of the conflict. In the event that it is finally accepted by both parties, it will be recorded in an agreement that may be elevated to public or judicially approves, when it is mandatory.
In case of not accepting the opinion, for any or any of the parties, a certification will be issued in which the attempt to agree by this route is collected, in order to guarantee the procedural requirement. Once the distinctive notes of the intervention of this expert have been known, can we be asked, can we apply it to family processes?
It is well known that the lawyers who dedicate ourselves to family and successions go to the contentious process after a previous negotiation, being the judicialization of the matter of our “last ratio.” However, the new law can offer solutions that until now we had not raised, such as the one analyzed here.
Despite the particularities presented by family processes, the law does not contain any express forecast for these matters, so, in principle, no obstacle would exist so that the parties decided to submit their procedure to the opinion of an expert third.
The difficulty lies – it is understood that it is a difficulty common to all specialties – in determining who is an “expert”. Is it necessary for it to be a jurist? Have you prove certain years of exercise in the field? Do you need to prove specialization in specific courses or formations? There are many doubts that arise around this figure. However, it is also an opportunity for all professionals who dedicate ourselves to family law.
The possibility of creating a kind of official registration of specialized professionals, which can only be accessed if certain requirements are met, which has a public nature and that is the provision of the justiciables, could be a first step, that guarantee the suitability of the expert to issue your opinion on the family issue that is entrusted to it.
Certainly, in the face of conciliation or mediation proposals, which can take several sessions and prolong in time, the submission to the consultation of an expert could be more effective, guaranteeing in turn the execution of the decisions taken by this, to be, a priori, knowledgeable of the latest jurisprudential criteria, as well as the formal requirements that any agreement must contain, especially in terms of minors.
In short, the opinion of the third expert can be an agile channel to avoid the judicialization of family processes or, where appropriate, guarantee the fulfillment of the procedural requirement, and may be a very useful tool to take into account in those new issues that entrust us.
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With the collaboration of Clara Redondo
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#opinion #independent #expert #procedural #efficiency #law
