Frances Leary and Others v. Father John J. Geoghan and Others

Frances Leary (plaintiff) sued Father John J. Geoghan (defendant) and the Roman Catholic Archbishop of Boston (archbishop) (defendant) on behalf of himself and others who had been sexually abused by Geoghan as children. Following years of litigation, the parties sought mediation and reached a settlement. One of the settlement terms required the Catholic Church to sell real estate. After the settlement was announced, Geoghan and the archbishop argued that any real estate agreement arising from the settlement was subject to the archdiocese’s financial council’s (council) review. However, the drafted agreement did not include a review provision. Leary argued that the real estate provision was not subject to the council’s review and filed suit against Geoghan. During the trial, Leary sought to call the mediator as a witness to testify that the document drafted following the settlement negotiation contained all of the settlement terms. The mediator sought a protective order barring him from testifying on the ground that a Massachusetts confidentiality statute barred mediators from being compelled to reveal communications made during mediation. The trial court judge denied the protective order on the ground that the statute created a waivable privilege that belonged to the mediating parties rather than creating an absolute ban on testimony that would reveal communications made during mediation. The matter was appealed.