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
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Last revised: Thursday, May 28, 2009