[658H-6] Exceptions to privilege. (a) There is no privilege under section 658H-4 for a mediation communication that is:

(1) In an agreement evidenced by a record signed by all parties to the agreement;

(2) Available to the public under chapter 92F or made during a session of a mediation that is open, or is required by law to be open, to the public;

(3) A threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(4) Intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(5) Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;

(6) Except as provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or

(7) Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the department of human services participates in the mediation.

(b) There is no privilege under section 658H-4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

(1) A court proceeding involving a felony or misdemeanor; or

(2) Except as provided in subsection (c), a proceeding to prove a claim to rescind or reform, or a defense to avoid, liability on a contract arising out of the mediation.

(c) A mediator shall not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the mediation communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose. [L 2013, c 284, pt of 1]

 

 

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