Waiver and preclusion of privilege.

5.   Waiver and Preclusion of Privilege.    a.   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).    L.2004,c.157,s.5.