Recently, however, photo-historians, investigative journalists and others have begun to question Capa’s version of events.  The result has been a total dismantling of the almost 75-year old saga that the photographs depict the first wave at Omaha Beach and that over 100 companion images were lost due to the negligence of a teenage assistant.  Instead, investigators pouring over the previously unquestioned images have convincingly theorized that the men described as “assault troops from the first wave” are actually a headquarters unit that came in on the thirteenth wave, and the images that show troops described as “men in the second wave taking cover” are not troops cowering from fire, but are actually combat engineers deliberately clearing the obstacles to allow larger landing craft to approach the beach. These same historians and investigators argue that rather than depicting the true hell that was ‘Bloody Omaha,’ the lack of bodies indicates that Capa actually landed on a nearly undefended area of the beach, a seam in the German defenses as one historian has put it.

Likewise, photo-historians armed with knowledge of photo developing techniques of the time have shown the story of a darkroom catastrophe due to a teenage assistant’s oversight does not survive serious scrutiny.  By studying the original frames, these historians conclude that there were no lost photographs and the “Magnificent Eleven” are simply the only images Capa shot on the day.

The historians surmise that Capa’s real motive in getting off the beach was to be the first photo-journalist back in England, so his photographs would be forever linked to the invasion before the assault became “yesterday’s news.” If this new research is correct, then one of the most enduring and repeated stories of the Normandy Invasion and the creation and importance of Capa’s “Magnificent Eleven” is a fabrication.

So, what does all of this have to do with mediation?

With alarming regularity, parties are telling me that they do not want to hold a joint opening session.  They give a number of reasons for this. Many believe that the joint session lacks value if the parties have prepared detailed mediation briefs.  Others believe that a joint session only increases the chance that a confrontational or emotionally-charged outburst will make resolution more difficult.  These concerns can certainly be true and justify foregoing a joint session in some matters, in most instances, particularly in commercial cases, the benefits of a joint session far outweigh the negatives.

The joint session is a time for each side to tell its side of the story.  Quite often, a party has not heard the “other side” because it is a natural human tendency to believe in the righteousness of our own cause, even in the face of contrary evidence.  The joint session is an opportunity for each side to hear the other’s point of view before the matter goes before a judge, jury or arbitrator.  In many instances, it has been my experience that he joint session provides an important “reality check” to the parties’ insistence of certain facts.

For nearly 75 years, no one ever challenged Capa’s claim that the “Magnificent Eleven” photographs depicted the first wave at Omaha Beach.  Had Capa’s story been scrutinized and the “other side” told and believed, Life most certainly would have published a retraction or clarification to put the photographs in their proper context.  To be sure, Capa was definitely a brave man . . . he eventually met an untimely death in 1954 when he stepped on a landmine after volunteering for an assignment in French Indochina (soon to be renamed Vietnam).  But due to a lack of serious scrutiny, for the last 75 years, Capa’s most iconic photographs may not depict what they have always been thought to be.

In history and litigation, there are often two or more sides to the story.  To make an informed decision on which evidence the historian or litigant should find compelling, it is important to hear from all sides, including the “other side.”  As Capa’s story shows, even truths long held to be sacred are open to challenge when all the evidence is examined.