This preclusion reflects a common practice in the States of exempting from confidentiality protection those mediation communications that relate to the ongoing or future commission of a crime, as discussed in the Reporter's Notes to Section 6(a)(4). However, it narrows the preclusion, thus retaining broader confidentiality, and removes the privilege protection only when an actor uses or attempts to use the mediation itself to further the commission of a crime, rather than lifting the confidentiality protection more broadly to any discussion of crimes. For example, it would preclude gang members from claiming that a meeting to plan a drug deal was really a mediation that would privilege those communications in a later criminal or civil case.

This Section should be read together with Section 6(a)(4), which applies to particular communications within a mediation which are used for the same purposes. The two differ on the purpose of the mediation: Section 5(c) applies when the mediation itself is used to further a crime, while Section 6(a)(4) applies to matters that are being mediated for other purposes but which include discussion of acts or statements that may be deemed criminal in nature. Under Section 5(c), the preclusion applies to all mediation communications because the purpose of the mediation frustrates public policy. Under Section 6(a)(4), the preclusion only applies to those mediation communications that have a criminal character; the privilege may still be asserted to block the introduction of other communications made during the mediation. This rationale is discussed more fully in the Comments to Section 6(a)(4).

§10006. Exceptions to privilege

1.__Exceptions.__There is no privilege under section 10004 for a mediation communication that is:

A.__In an agreement evidenced by a record signed by all parties to the agreement;

B.__Available to the public under Title 1, chapter 13, subchapter 1 or made during a session of a mediation that is open, or is required by law to be open, to the public;

C.__A threat or statement of a plan to inflict bodily injury or commit a crime of violence;