Section 2A:23C-5 - Waiver and preclusion of privilegea. A privilege under section 4 of P.L. 2004, c. 157(C.2A:23C-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) in the case of the privilege of a mediator, it is expressly waived by the mediator; and(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.b. A person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 4 of P.L. 2004, c. 157(C.2A:23C-4), but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.c. A person who 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 of P.L. 2004, c. 157(C.2A:23C-4).Added by L. 2004, c. 157, s. 5, eff. 11/22/2004.