The recent impasse between Kevin Pietersen and the English Cricket Board has led to much wailing and gnashing of teeth in those sectors of society who care about these things. In particular, a significant proportion of the sporting press seems convinced that England’s attempts to regain its status as the number one cricket team in the world in 20/20’s and Tests is doomed without KP’s controversial but undeniable brilliance. The remainder, on the other hand, mainly contend that the morale in the dressing room will be much improved without KP. As ever, I suspect that the middle ground is probably much closer to the truth – few teams would want to lose the services of arguably their best player yet equally, with the arguable exception of Barry Bonds and the San Francisco Giants, few teams would want to build their playing staff around a player who is disliked by the majority of his team-mates.
As interesting as all this sport is, you will probably be thinking, “What’s this got to do with Employment law?” The thing that I find interesting about the Kevin Pietersen situation is not that this impasse may soon be resolved, but the manner of resolution. According to the Daily Telegraph, “professional dispute resolution advisers” are being called in to help ease the transition. In layman’s terms, mediators will come in to try to find a workable way forwards for all concerned. BBC News Online reports today that this may have been found – a fresh apology for his provocative text messages and a formal assurance that his England commitments will come first.
This is part of a growing recognition that a formal disciplinary or grievance process may not be the best solution to a problem, especially where (to a greater or lesser extent) both parties need each other. By the nature of the process, both parties have to draw their battle lines up at the outset and then tend to dig in (sometimes, yes, on legal advice), for fear of saying or doing something that might leave them in a weaker position or liable to a later Tribunal claim. Good Lord, I hear you say, a lawyer admitting that lawyers can make a situation too adversarial. The point is that lawyers need to be aware that their job nowadays is not just to give the client correct legal advice but to have an awareness of, and a willingness to use, less formal solutions, such as workplace mediation, to achieve swift, cheap and practical accommodations.
Whenever two parties espousing contradictory positions enter into negotiations, the temptation is for both sides to exaggerate their positions and then hold firm, for fear of being seen to be ‘weak’. This is often despite the fact that both sides can usually predict the range within which settlement will fall even prior to the start of negotiations. This process can then lead to bitterness and the termination of long-held relationships over relatively small issues, rather than reconciliation. In the end, with KP, both parties clearly came to the realisation that each was weaker without the other. I would argue that this is true of many employment relationships. After all, is KP’s sensitive ego any different from that of your star salesperson, creative director or investment banker who genuinely believes he is the best and cannot see either (a) how everyone else fails to recognise this and/or (b) why, when gifted with such ability, he needs to work professionally and civilly with lesser mortals?
Formal proceedings may entail irretrievable loss of face, but a confidential resolution to which the star must by definition be a willing party can mend bridges instead without anywhere near so much damage being done.