Waiver and preclusion of privilege.

A privilege under § 16-4203 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and: In the case of the privilege of a mediator, it is expressly waived by the mediator; and In the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant. 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 § 16-4203, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure. 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 § 16-4203.