South Dakota Custody Mediation: How It Works and How to Prepare

When the Court Orders Mediation

If parents in a South Dakota custody case can't agree on custody or visitation, the court is required to order mediation under SDCL § 25-4-56. This isn't optional — it's a mandatory step before the case can proceed to trial.

There's one critical exception: the court cannot order mediation if a parent has been convicted of domestic abuse under SDCL § 25-10-1(1), convicted of assault against a family or household member, or if the court finds a documented history of domestic abuse. The safety of the vulnerable parent takes priority. Domestic abuse can be established by a "greater convincing force of the evidence" — not beyond a reasonable doubt, but more likely than not.

What Happens in Mediation

Mediation is a structured negotiation facilitated by a neutral, court-approved mediator. It's not a trial. The mediator doesn't decide who gets custody — their job is to help both parents reach an agreement by identifying common ground, clarifying goals, and working through disagreements methodically.

A typical mediation session runs 2–4 hours, though complex cases may require multiple sessions. The mediator may meet with both parents together, or use a "shuttle" approach where each parent stays in a separate room and the mediator moves between them. The shuttle approach is common when conflict is high.

The mediator may exclude attorneys from participating directly in the mediation sessions. Some mediators prefer to work directly with the parents without legal counsel present; others allow attorneys to attend. Ask in advance so you know whether your lawyer will be in the room with you.

Confidentiality Is Absolute

Under SDCL § 25-4-59 and § 25-4-60, everything said in mediation is strictly confidential. No statements, admissions, offers, or negotiations from mediation can be used as evidence in court. The mediator cannot be called as a witness. Work products created during mediation — draft proposals, settlement notes, financial calculations — are also protected.

This confidentiality encourages honest negotiation. You can make offers, explore compromises, and discuss concerns without worrying that your words will be twisted against you later. If mediation fails and the case goes to trial, the judge hears the case fresh — they won't know what was discussed or offered in mediation.

What Mediation Costs

Mediator fees vary by mediator and judicial circuit. The court typically splits the cost 50/50 between the parents based on their financial resources, though the judge can adjust the allocation.

Both parents are responsible for their share of mediation costs regardless of outcome. Filing for a fee waiver (Form UJS-022) covers court filing fees but generally doesn't cover mediator fees, which are paid directly to the private mediator.

How to Prepare

Mediation works best when you walk in with a clear proposal and realistic expectations. Here's what to prepare:

Know your schedule. Draft a proposed residential schedule before mediation. Use a calendar to count overnights — you need to know whether your proposal crosses the 180-night threshold for shared physical custody and how it affects child support.

List your priorities. Separate the things you must have from the things you'd like. Maybe joint legal custody is non-negotiable but you're flexible on whether exchanges happen Friday or Saturday. Knowing your hierarchy helps you make strategic concessions without giving up what matters most.

Organize your concerns. If you have specific worries — the other parent's work schedule, safety issues, communication problems — prepare to discuss them with concrete examples rather than generalizations. "Three of the last five exchanges were 30+ minutes late" is more useful than "They're always late."

Bring relevant documents. Work schedules, school calendars, the child's activity schedule, and draft support calculations give you a factual foundation for your proposals. You don't need formal exhibits — this isn't trial — but having the facts at hand strengthens your position.

Plan your communication approach. Mediation rewards constructive problem-solving and penalizes hostility. Focus on the child's needs, not grievances about the other parent. "The child does better with a consistent bedtime routine" is productive; "You never put them to bed on time" isn't.

If Mediation Fails

If mediation doesn't produce an agreement, the case moves to a contested hearing or trial. The mediator reports to the court only that mediation was unsuccessful — not what was discussed. The court then schedules the matter for hearing, where a judge applies the Fuerstenberg best-interest factors to make the custody decision.

The South Dakota Child Custody & Parenting Plan Guide includes a mediation preparation worksheet that walks you through each of these steps — from drafting your initial proposal to calculating the overnight count for child support purposes.

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