Article 29: Dispute Resolution Act and Uniform Mediation Act · Last amended 2003 · Last verified July 22, 2026
In one sentenceThis section explains how Nebraska’s mediation privilege can be given up — an express waiver, in a record or orally in a proceeding, by everyone whose privilege is at stake — and describes two situations where a person loses the right to claim it: prejudicial disclosure and using mediation to plan or hide a crime.
Full Text of § 25-2934
Text size
(a) A privilege under section 25-2933 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 that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 25-2933, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
(c) 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 section 25-2933.
Source
Laws 2003, LB 255, § 5.
Plain-English Summary
The mediation privilege described in section 25-2933 is not absolute, and section 25-2934 spells out how it can end. The clean route is waiver: the privilege can be given up in a record or stated orally during a proceeding, but only if all parties to the mediation expressly waive it, and, where the mediator’s or a nonparty participant’s own privilege is involved, that mediator or nonparty participant expressly waives it too. No single party can waive the privilege on everyone else’s behalf.
The messier route is preclusion, where someone loses the right to claim the privilege through their own conduct. First, a person who discloses a mediation communication, or makes a representation about one, in a way that prejudices another person in a proceeding cannot then hide behind the privilege, but only to the extent the prejudiced person needs to respond to that disclosure or representation. It is a narrow, self-defense-style exception, not a wholesale forfeiture.
Second, and without any such limit, a person who intentionally uses a mediation to plan a crime, attempt one, commit one, or conceal an ongoing crime or ongoing criminal activity is precluded from claiming the privilege at all. Mediation cannot double as a shield for criminal conduct.
Frequently Asked Questions
Can one party to a mediation waive the privilege for everyone else?
No. Waiver requires express agreement from all parties to the mediation, plus the mediator if the mediator’s privilege is at stake and any affected nonparty participant if that participant’s privilege is at stake.
Does the waiver have to be in writing?
It can be in a record or stated orally during a proceeding, as long as it is express.
What happens if I disclose part of a mediation conversation in a way that hurts the other side’s case?
You may be precluded from then asserting the privilege, but only to the extent the other side needs to respond to what you disclosed or represented.
Does using mediation to plan or cover up a crime destroy the privilege?
Yes. A person who intentionally uses mediation to plan, attempt, or commit a crime, or to conceal an ongoing crime, is precluded from claiming the privilege.
If the mediator wants to keep the mediator’s own communications privileged, can the parties waive that for the mediator?
No. The mediator’s own privilege requires the mediator’s express waiver; the parties waiving their own privilege does not reach the mediator’s separate privilege.
Is preclusion the same thing as waiver?
No. Waiver is a voluntary, express choice to give up the privilege; preclusion is losing the right to claim it because of prejudicial disclosure or criminal misuse of the mediation.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as:waiving mediation privilege nebraskalosing mediation privilege through misconductmediation privilege preclusion crimeexpress waiver mediation communication nebraskacan mediator waive own privilege