a) There is no privilege under Section 201.250 for a mediation communication that is:

1. 1) in a written agreement resulting from the mediation;
2. 2) available to the public under the Freedom of Information Act [5 ILCS 140] or made during a session or a mediation which is open, or is required by law to be open, to the public;
3. 3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
4. 4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
5. 5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or
6. 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 participant or representative of a participant based on conduct occurring during a mediation.

b) There is no privilege under Section 201.250 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the person 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. 1) a court proceeding involving a felony; or

2. 2) except as otherwise provided in subsection (c), a proceeding:

   1. A) to prove a claim arising out of a mediated agreement;
   2. B) to rescind or reform a mediated agreement; or
   3. C) in which a defense is prepared against a claim arising out of a mediated agreement.