A Q&A Session With Mark E. Segall, Esq.

Learn more about Mr. Segall’s previous role as head of litigation at J.P. Morgan, highlights of his career and what he’s focused on at JAMS

Tell us about your legal career prior to joining JAMS.

Prior to joining JAMS, I spent 20 years with J.P. Morgan and its predecessor firms and served as worldwide head of litigation from 2003 to 2010. Before that, I was in charge of workout and bankruptcy litigation and antitrust and trade practice matters. I spent the early portion of my career as a litigator with a particular focus on complex securities and antitrust litigation. As head of litigation at J.P. Morgan, my principal focus was to evaluate litigation risk and decide what cases we should litigate, what cases we should settle and when we should do so with the assistance of ADR. My very favorite thing to do was represent J.P. Morgan at mediations of some of our most important cases. Pursuing ADR was a logical next step in my career, as it involved addressing similar problems from a different seat at the table. I believe that my background qualifies me to be a particularly effective and skilled mediator and arbitrator.

How would you describe your settlement style?

As a mediator, I focus initially on giving all the parties a full and fair opportunity to be heard. I want to hear directly from the clients themselves on their perspectives on the dispute and establish a rapport with both the clients and their lawyers. I ask questions designed to cause the parties and their lawyers to understand the strengths and weaknesses of their positions, what would be reasonable best- and worst-case damages, and the attorneys’ fees, costs and pain involved in litigating a case to conclusion. I encourage the parties throughout the mediation day to understand that they are unlikely to achieve a “home run” or even a “single” or “double” in a settlement and instead focus on what is barely tolerable rather than continuing to litigate. Ultimately, I tell the parties to ask their lawyers the really hard question of what’s the least they would recommend accepting if they are the plaintiff or the most they would recommend paying if they are the defendant. I make it clear that the parties can count on the fact that I am being totally straight with them and will not say things that I don’t believe are true.

As an arbitrator, I focus on giving the parties a platform where they have a complete opportunity to present their cases. I try to be fair in the discovery phase while bearing in mind that arbitration should be administered in a way that it is less expensive and takes less time than litigation in court. Ultimately, as the decision-maker, my responsibility is to give careful consideration to the arguments made by both sides and make a decision with which I am comfortable as a matter of both fact and law.

Which practice areas interest you and why?

I have developed a significant practice in both mediation and arbitration in cases involving senior executives who leave financial services firms with significant disputes involving all forms of executive compensation, whether a termination is or is not with cause, discrimination, retaliation and sexual harassment. My own experience as a senior officer of a major financial services firm makes me particularly well qualified to mediate and arbitrate cases of this type. That same background also makes me especially qualified to mediate and arbitrate complex securities and antitrust matters, litigation arising out of mergers and business breakup cases.

What was one of the more interesting cases you were involved with?

My favorite cases involve people who have been successful and find themselves, perhaps for the first time, in a very serious dispute. These people are often unused to having the propriety of their conduct challenged and need to understand the strengths and weaknesses of their positions so that they can reach a compromise. In some of these cases, there is immense pressure to work to achieve a resolution before a public announcement regarding a change in senior management. In one case, we had eight mediation sessions in one month, and in another, we negotiated into the wee hours of the morning for four consecutive days so that the settlement could be completed before the announcement of changes in senior management. 

How important is it to understand the business aspects of a case?

I believe that understanding the business aspects of a case is critical. As a mediator, the fact that you understand the business gives you credibility with the parties. As an arbitrator, your ability to understand the business permits you to put the factual and legal arguments in context. If you understand the business, you are better able to evaluate what arguments are significant and what arguments are red herrings.

How does your background lend itself to neutral evaluation work?

I am especially well qualified to handle neutral evaluation work. As head of litigation at J.P. Morgan, my most important responsibility was to figure out what cases the institution should litigate and which should be settled and at what level. I am very well versed in evaluating reasonable best- and worst-case damages and the odds that a trier of fact will find in one’s favor. I have always preached that the obligation in these circumstances is to be completely objective and not allow emotions to get in the way. In making these evaluations, one must think through how a trier of fact is likely to react to a business practice that an ordinary citizen might regard with greater skepticism than would the businesspeople involved at the time of the events at issue.

Who influenced your legal career, and what is the best piece of advice you received from them?

I have been influenced by leaders on both the legal and business sides who were not hierarchical. The best advice they gave me was how important it is to speak directly to those who have spent the most time on a problem, even if they might report to someone one or two levels down from the most senior person in the room.

Any other fun facts you’d like to share?

It might be hard to believe, but I was briefly a baby model. A relative owned a company that made a balm for teething babies. They needed a picture of a six-month-old for the label on the jar, and my smiling face was available. When I celebrated a milestone birthday, the invitation to the party was that picture with a caption that read “Guess Who Is Turning 50.”