1. (a) A privilege under Section 4 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:

   1. (1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and
   2. (2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
2. (b) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under Section 4, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
3. (c) A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under Section 4.

(Source: P.A. 93-399, eff. 1-1-04.)