12:20:02:01.  Definitions. Terms defined in SDCL 54-13-1 have the same meaning in this chapter. In addition, terms used in this chapter mean:

          (1)  "Director," the director of mediation services or their designee;

          (2)  "Requesting Party," the individual, group, or entity initiating mediation;

          (3)  "Non-requesting Party," the individual, group, or entity with whom mediation is requested.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:02.  Mediator training. The director, in conjunction with the Department of Agriculture and Natural Resources, may provide initial training in mediation techniques to the mediators. This training shall include at least 32 hours of initial training on the mediation process, mediation skills, federal lands issues, surface damage relating to oil and gas development issues, and shall include instruction that a mediator may not advise the requesting party or non-requesting party about the law or to encourage or assist a requesting party or non-requesting party in reserving or establishing legal rights. If a mediator has previous training exceeding these 32 hours, the mediator may provide proof of other qualifications. Subsequent and supplemental training of mediators may be conducted by the South Dakota Department of Agriculture and Natural Resources. Successful completion of the initial training session constitutes the minimum qualification to serve as a mediator.

          Source: 41 SDR 93, effective December 2, 2014; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:03.  Mediation fees. Requests for mediation must be filed with the director on a form which may be obtained from the director. The form must be accompanied by the following fees:

          (1)  Federal Lands Mediation: a nonrefundable initial fee of $200 for the requesting party's share of the filing request. If the non-requesting party replies in the affirmative to use mediation, that response shall be accompanied by a nonrefundable initial fee of $200 for the non-requesting party's share of the filing request. No mediation services may be provided unless each party has paid the required initial fee. If mediation occurs, the requesting party and the non-requesting party shall each pay an equal amount of the mediators expenses based on the mediator's time report, not to exceed $200 per hour per party. Additionally, each party will share in any mailing expenses incurred by the department. If federal lands mediation is with a USDA agency, the agency is exempt from this requirement and is not required to pay any fees; the other party to the mediation will pay half of the mediators expenses based on the mediator's time report, not to exceed $200 per hour.

          (2)  Oil and Gas Mediation: a nonrefundable initial fee of $200 for the requesting party's share of the filing request. If the non-requesting party replies in the affirmative to use mediation, that response shall be accompanied by a nonrefundable initial fee of $200 for the non-requesting party's share of the filing request. No mediation services may be provided unless each party has paid the required initial fee. If mediation occurs, the requesting party and the non-requesting party shall each pay an equal amount of the mediator's expenses based on the mediator's time report not to exceed $200 per hour per party. Additionally, each party will share in any mailing expenses incurred by the department.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:04.  Contents of request for mediation. The request for mediation must contain the following information:

          (1)  The name, address, and telephone number of the requesting party;

          (2)  The type of mediation requested and nature of the conflict;

          (3)  The name, address, and telephone number of the non-requesting party;

          (4)  The stated location of the real estate, including legal description. If the property is under the control of a third party or directly affects a third party, list the name, address, and telephone number for the third party; and

          (5)  If needed, the names of additional parties involved with mediation.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:05.  Procedure for requested mediation. The following procedure applies upon receipt of a request for mediation:

          (1)  The director shall evaluate the request and determine if mediation is allowable under SDCL 54-13;

          (2)  If allowable, the director may offer other alternative means to resolve the dispute and continue with the mediation process by mailing a notice of a request for mediation to all parties;

          (3)  If not allowable, the director shall mail a notice to the requesting party explaining why the mediation request is not allowable through the Department of Agriculture and Natural Resources. A requesting party may in writing, request the determination of the director be reviewed by the secretary and reconsidered;

          (4)  Mailing the notice of request for mediation by certified mail to the non-requesting party begins the mediation period;

          (5)  A non-requesting party receiving notice of a request for mediation must answer in writing to the director within 20 days after the notice was postmarked;

          (6)  A non-requesting party who fails to respond to the director within 20 days is considered to have waived mediation. Upon receipt of the non-requesting party's written intent to mediate, the director shall schedule a mediation session.

          Source: 41 SDR 93, effective December 2, 2014; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:06.  Form for notice of request for mediation. The form for notice of request for mediation shall include the following:

          (1)  The name of the party requesting mediation;

          (2)  A brief description of the mediation process;

          (3)  A statement informing all parties that the party or representative attending the mediation session must have the authority to negotiate agreements with other parties;

          (4)  The information required to be brought to the initial mediation session;

          (5)  A statement that all parties must attend the mediation session.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:07.  Mediation meeting notice form. The form for notice of the mediation session shall include the following:

          (1)  The time and place of the initial mediation session;

          (2)  The name of the parties involved in mediation;

          (3)  The name of the mediator assigned;

          (4)  A brief description of the mediation process;

          (5)  A statement informing all parties that the party or representative attending the mediation session must have the authority to negotiate agreements with other parties;

          (6)  The information required to be brought to the initial mediation session.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:08.  Conduct at mediation sessions. Mediation sessions shall be conducted as follows:

          (1)  Mediation sessions are under the control of the mediator;

          (2)  The mediator must hold in strict confidence all information provided by the parties to the mediation;

          (3)  All parties must have the opportunity to speak and state their positions;

          (4)  Legal counsel may advise clients regarding legal rights and the implication of suggested solutions;

          (5)  All parties to the proceedings must make a good faith effort to resolve the dispute.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.

          12:20:02:09.  Mediation agreement. If the parties involved in mediation reach a tentative agreement, the mediator shall summarize the terms of the agreement for review by the parties.

          After the terms of the agreement are reviewed and approved by all agreeing parties, those parties shall sign the document. All agreeing parties are required to sign the agreement.

          Those parties who do not reach agreement may request another mediation session in writing. The request may be declined by either party. If the parties agree that a mediated solution is not possible, the parties involved may indicate in writing that they were unable to reach an agreement. The mediation period shall be 90 days or less; parties may agree in writing to extend the mediation by 30 days.

          Source: 41 SDR 93, effective December 2, 2014.

          General Authority: SDCL 54-13-2.

          Law Implemented: SDCL 54-13-2.