PREACHED ON MATTHEW 5:9: “Blessed are the peacemakers, for they shall be called sons of God.” The pastor’s central message had been that if God blesses peacemakers, we also should honor and respect them. The pastor did a nice job with the sermon, but Connor thought it was a little obvious. After all, who doesn’t like peacemakers?
Now he knew.
Connor was in no mood to bless the retired judge who was mediating State of California ex rel. Devil to Pay, Inc. v. Hamilton Construction Corp. The mediation had been going on for nearly five hours, and Connor was seething.
The problem wasn’t that the mediator was incompetent. Quite the contrary. The mediator was a wily old trial judge named Abraham Washburn who had retired to the greener pastures of private mediation, where he could do half the work of a judge for twice the money. Unfortunately, he was proving entirely too good at his new career for Connor’s liking.
“A good mediator only looks for one thing: weakness.” So another judge-turned-mediator had told Connor several years ago as he was preparing for his first mediation. Connor had seen the weaknesses in Hamilton Construction’s case perfectly clearly, but he had missed a serious weakness on his side of the table: Max Volusca.
Connor had figured that he could count on Max to take a hard line throughout the negotiations but ultimately allow himself to be talked into whatever deal Connor could get. That sort of tag-team effort had worked well in the past and had shaken loose handsome sums in half a dozen prior settlement negotiations.
Max was taking a hard line this time too, but Judge Washburn had persuaded him that it was more important to fight over principles than dollars. “You represent the Department of Justice, not the Department of Finance, counsel,” he had told Max. “And isn’t justice better served by a comprehensive deal that includes a criminal plea and a public apology, even if that means a little less money?” That resonated with Max, even once it became clear that “a little less money” really meant “nothing more than repayment of the most egregious overbilling”— a number that Hamilton Construction insisted was less than $1 million.
Connor protested, of course. A criminal plea and apology would look great in a press release from the Attorney General’s office but would have little real effect. Companies like Hamilton Construction didn’t give a rat’s rear end about bad publicity as long as it didn’t interfere with business.
Unfortunately, Connor and his client had very little leverage in these negotiations. That was the downside of suing on behalf of the state. It was great to have Max Volusca thunder about orange jumpsuits and terrify defendants into doing the right thing. But if Max decided that the right thing was little more than a public shaming, there wasn’t much Connor or Devil to Pay could do to stop him.
The mediator fully understood the dynamics of the situation and did everything in his power to keep Connor from talking Max out of the deal that was beginning to gel. First, he took Connor with him as he shuttled back and forth between Max and the Hamilton Construction team, who were in separate conference rooms at either end of a short hallway. Then he parked Connor by himself in a third conference room on the pretext that there were certain matters related to confidential investigative documents (which Connor could not legally see) that needed to be hammered out.
Connor spent half an hour cooling his heels and admiring the spectacular view of the Golden Gate Bridge afforded by the conference room window. Late afternoon fog softened the outlines of the graceful spans of the bridge and cast halos around the headlights of the cars coming south out of the rugged Marin Headlands, which were graced by picturesque (and very expensive) towns. It was a soothing view. But Connor was in no mood to be soothed.
Judge Washburn opened the door and poked his head in. “Connor, great news!” he said, his bright white smile contrasting with a deep golf tan. “We’ve got a deal!”
Connor raised his eyebrows in surprise. “Really? How can you have a deal without my client’s agreement?”
The mediator’s brow furrowed in a disingenuous show of surprise and concern. “Oh, I thought that the whistleblower just gets a share of whatever the state gets. Did I misunderstand that?”
“That’s technically how the law works,” Connor conceded, “but as a practical matter we’re always part of the negotiations. Plus there’s the issue of