§ 5717. Exceptions to privilege

(a) There is no privilege under section 5715 of this title 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 1 V.S.A. chapter 5, subchapter 3, or made during a session of a mediation which 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, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity;

(5) 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, but this exception does not apply where a child or adult protection case is referred by a court to mediation and a public agency participates in the mediation;

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

(7) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation, except as otherwise provided in subsection (c) of this section.

(b) There is no privilege under section 5715 of this title if a court, administrative agency, or arbitration panel 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 the mediation communication is sought or offered in:

(1) a criminal proceeding in Criminal Division of the Superior Court;

(2) a child protection proceeding under 33 V.S.A. chapter 49 or 55;

(3) a protection proceeding involving a vulnerable adult under 33 V.S.A. chapter 69; or

(4) a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, a contract arising out of the mediation, except as otherwise provided in subsection (c) of this section.

(c) A mediator may not be compelled to provide evidence of a mediation communication referenced in subdivision (a)(7) or (b)(4) of this section.

(d) If a mediation communication is not privileged under subsection (a) or (b) of this section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) of this section does not render the evidence or any other mediation communication discoverable or admissible for any other purpose. (Added 2005, No. 126 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 238.)