(a) There is no privilege under §  19-13A-4 for a mediation communication that is:

(1)    in an agreement evidenced by a record signed by all parties to the agreement;

Terms Used In South Dakota Codified Laws 19-13A-6

  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Felony: A crime carrying a penalty of more than a year in prison.
  • Misdemeanor: Usually a petty offense, a less serious crime than a felony, punishable by less than a year of confinement.

(2)    made during a session of a mediation which is open or is required by law to be open, to the public;

(3)    a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(4)    intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(5)    sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;

(6)    except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or

(7)    sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the matter has been referred to mediation by a court under §§  25-4-56 to 25-4-62 , in which case the terms of those statutes shall apply.

(b) There is no privilege under §  19-13A-4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

(1)    a court proceeding involving a felony or Class 1 misdemeanor;

(2)    except as otherwise provided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on an agreement arising out of the mediation.

(c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

Source: SL 2008, ch 286 (Supreme Court Rule 07-07), eff. Jan. 1, 2008.