## Facts

- Frances Leary and others sued Father John J. Geoghan and related church defendants, including the Roman Catholic Archbishop of Boston, alleging childhood sexual abuse by Geoghan and negligent supervision by church officials.
- After years of litigation, the parties participated in mediation with an attorney serving as mediator.
- The mediation resulted in a settlement, including a term requiring the Church to sell certain real estate as part of the settlement’s performance.
- After the settlement was announced, the defendants contended that any real-estate sale obligation was subject to review or approval by the Archdiocese’s finance council.
- The written settlement document drafted after the mediation did not include a finance-council review/approval condition.
- Leary asserted that the real-estate term was not contingent on finance-council review and pursued litigation to enforce the settlement as written.
- In the ensuing dispute, Leary sought to call the mediator as a witness to testify that the post-mediation document contained all settlement terms the parties agreed to and that no finance-council condition was part of the deal.
- The mediator moved for a protective order, relying on Massachusetts’ mediation confidentiality statute (G.L. c. 233, § 23C) and arguing he could not be compelled to reveal mediation communications.
- The trial judge denied the protective order, reasoning that the statute created a privilege belonging to the parties and that the privilege could be waived, allowing limited mediator testimony.
- The mediator appealed from the order requiring him to testify.

## Issues

1. Whether G.L. c. 233, § 23C bars compelling a mediator to testify about communications made during mediation in later litigation concerning a mediated settlement.
2. Whether the confidentiality protection in § 23C is nonwaivable as to the mediator (i.e., not merely a party-held privilege that parties can waive to compel mediator testimony).
3. In a settlement-enforcement dispute, whether a court may require a mediator to authenticate or explain the completeness of a written document prepared at the end of mediation when that testimony would reveal mediation communications.

## Decision

- The Massachusetts Appeals Court concluded that § 23C prevents compelling mediator testimony regarding mediation communications.
- The court rejected the trial court’s view that confidentiality operates only as a waivable party-held privilege that can be used to force a mediator to testify if the parties want the testimony.
- The court determined that allowing mediators to be routinely subpoenaed in post-mediation disputes would undermine the confidentiality assurance the statute provides and would conflict with the mediator’s role as a neutral.
- The Appeals Court reversed the order denying the mediator’s protective order and directed that the mediator not be compelled to testify about mediation communications.

## Legal Principles

- Massachusetts’ mediation confidentiality statute (G.L. c. 233, § 23C) is construed to bar compelling a mediator to disclose mediation communications in later proceedings.
- The statute’s protection is not treated as a standard evidentiary privilege controlled and waived at will by litigants when the target of the subpoena is the mediator.
- Courts should be cautious about converting mediators into witnesses in disputes over the meaning or enforcement of a mediated settlement, because doing so conflicts with the mediator’s neutrality and the confidentiality assurance the statute supplies.
- Parties litigating a settlement dispute must rely on sources of proof other than the mediator’s testimony about what occurred in mediation, such as the written agreement, admissible surrounding documents, and other non-protected evidence.

## Conclusion

In *Frances Leary and Others v. Father John J. Geoghan and Others*, the Massachusetts Appeals Court held that G.L. c. 233, § 23C bars compelling a mediator to testify about mediation communications, reversing a trial court order that treated mediation confidentiality as a party-held, waivable privilege in a settlement-enforcement dispute.


Frances Leary and Others v. Father John J. Geoghan and Others, 137 N.E.3d 431, Mass. App. Ct. (2019)