78B-10-105. Waiver and preclusion of privilege.
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78B-10-105. Waiver and preclusion of privilege.
(1)A privilege under Section 78B-10-104 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation, and:
(a)in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(b)in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
(2)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 78B-10-104 , but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(3)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 78B-10-104 .
Renumbered and Amended by Chapter 3 , 2008 General Session